One interesting question lurking in the background of some recent Supreme Court cases is the scope of discretion executive agencies receive when they assert very broad power over areas that are traditionally committed to state authority. Traditionally, under the Court’s landmark 1984 decision in Chevron v. Natural Resources Defense Council, courts are supposed to defer to an agency’s “reasonable” interpretation of its authority when the statute does not clearly speak to the question at issue. The question is, what happens when an ambiguous statute buts up against the outer boundaries of federal constitutional power?
After Gonzales v. Raich, the question was all the more pressing. Raich held that Commerce Clause concerns are at a low ebb when Congress regulates an interstate market “comprehensively.” In that context, when Congress finds that regulating local conduct is essential to the larger regulatory scheme, the majority in Raich said it will defer to Congress’s judgment. As Cato’s amicus brief in Rapanos argued:
If, after Raich, agencies can use legislative history, statutory purpose, or context to manufacture ambiguity nowhere apparent from the text of a statute, and if, in turn, agencies interpreting their power under “ambiguous” statutes are granted both the full quantum of deference owed to Congress under Raich and under Chevron, the potential for agency aggrandizement is immense, indeed.
In light of these and other concerns, we argued, Congress (at a bare minimum) must clearly state in the text of the statute that it intends to push the envelope of federal power before agencies can assume the power and discretion to step into an area traditionally regulated by states.