Making Our Democracy Work (20 page)

In another, less important case the Court made clear that
Chevron
does not set forth an absolute deference rule. A statute authorizes the U.S. Customs Service to “fix” according to Treasury Department regulations
the “final classification and rate of duty applicable” to imported merchandise. A customs service officer, applying a Treasury Department regulation, classified three-ring binder “day planners” among “diaries,” placing them in a high-duty category rather than among “other” items in a low-duty category. In deciding this case, the Court held that the reviewing court, the U.S. Court of International Trade, should
not
defer to a customs officer’s interpretation of the relevant regulations. The Court was convinced that Congress would not have intended that deference because of the large number of customs officers, the large number of such rulings, the speed and informality with which they were made, and the presence of a specialized reviewing court.
¹⁷

What explains these decisions? Why does the Court sometimes defer to an agency’s interpretation of a statute and sometimes not? Why does
Chevron
not always work as an explanation? The answer begins with the democratic dilemma mentioned earlier. To defer to an agency’s view is to give the agency power to say what the law means. In principle, Congress, elected by the people, should decide how much power the agency should have. But what are courts to do when Congress does not say? As in all statutory matters, the answer will depend on the statute’s purposes and context, and particularly on matters of comparative expertise.

It is more reasonable to believe that Congress (had it considered the matter) would have wanted the reviewing court to defer to the agency’s views if an agency has special expertise regarding the legal question, if the question concerns detailed matters of the agency’s program or its administration, if the legal question has little general importance, if the agency has considered the matter with greater care, and if the statute’s language is ambiguous.

Congress (had it considered the matter) is more likely to have thought that the reviewing court possessed the relevant expertise (at least comparatively speaking) and did not intend deference to agency views, however, when the agency does not fully consider the question, the question involves important general matters of policy, or an answer is likely to clarify, illuminate, or stabilize a broad area of law. In both sets of circumstances, looking at the statutory purposes and context
and the comparative expertise of the agency and the Court produces a decision that facilitates, rather than impedes, the working of the statute in the real world.

In the EPA case the breadth and importance of the legal question at issue seemed more significant than the fact of greater EPA technical expertise in respect to carbon dioxide. The Court could reasonably think that the relevant expertise needed to answer the question was primarily legal, not administrative, and that the agency ruling misinterpreted Congress’s intent. The Court was (relatively) better positioned to consider the purposes of the statute and the related consequences of excluding or including greenhouse gases.

In the U.S. Customs Service case, the Court noted that the service’s expertise argued in favor of deference. But the officers’ informal ruling letters were “churned out at a rate of 10,000 a year at [the] agency’s 46 scattered offices,” which suggests those letters were done quickly without too much concern for their consistency with statutes, regulations, or one another. Moreover, the reviewing court, the U.S. Court of International Trade, not just the customs officers, had expertise in these matters. Hence, the Court concluded that Congress could not have intended deference.
¹⁸

T
HE
C
OURT, INTERPRETING
congressional silence, has worked out a practical system of deference. Using comparative expertise as a touchstone, courts by and large defer where, comparatively speaking, agencies are likely better able to solve the problem. They do not defer where, comparatively speaking, courts are likely better able to solve the problem. This approach is consistent with the Constitution’s democratic aims. It recognizes that decisions about how much authority to delegate to an agency, like other statutory matters, rest ultimately in the hands of Congress. And Congress is responsible to voters. But importantly, those voters may be unaware of the details and may well only know whether Congress’s statutes are “working out well.”

The approach, complex though it is, therefore creates a workable partnership between the courts and Congress. Furthermore, it respects the role of agencies in performing the functions of government. By taking
account of comparative expertise, the Court allows agencies to handle matters within their competence while subjecting them to appropriate constraints. Congress likely intends this arrangement for the simple reason that it can make statutes work better. It helps the tripartite system work well in practice. And that in turn helps to maintain public acceptance of the Court’s decisions.

T
HIS CHAPTER CONCERNS
ways of maintaining a strong working relationship between the Court and the states. This relationship embodies the constitutional idea of federalism, an idea that concerns the
level
of government at which Americans should try to solve common problems. The question of “proper level” often turns on empirical matters. And Justice Brandeis, dissenting in
New State Ice Co. v. Liebmann
, invoked four famous propositions about the relations of courts and legislatures in respect to empirical matters. First, when government seeks a solution to an economic or social problem, empirical matters are often highly relevant. Second, comparatively speaking, judges are not well equipped to find remedies for economic or social problems. Third, legislatures, comparatively speaking, are far better suited to investigating, to uncovering facts, to understanding their relevance, and to finding solutions to related economic and social problems. Fourth, the Constitution embodies a democratic preference for solutions legislated by those whom the people elect. These propositions are often relevant when federalism is at issue.
¹

With these “truths” in mind, the Court has tried to apply principles of federalism while relying on those with greater factual knowledge or experience to help it determine where the law assigns responsibility for a particular problem.

C
ONSTITUTIONAL FEDERALISM EMBODIES
a historical idea about the legitimacy of federal governmental power. Madison expressed this idea when he described the Constitution as a “charter [] … of power … granted by liberty,” not a “charter[] of liberty … granted by power.” His point is that in America, “We the People” are the source of the legitimate exercise of federal power. We the people delegate to the central government the power that it has. This means that any power that the Constitution does not delegate must be reserved for a free people, who Madison thought would not delegate to a central government the power to deprive them of their freedom.
²
In contrast, Madison suggests, Europeans have often located the source of legitimate power in a king. In such a system, power flows from the center. And power not delegated elsewhere, say to the people, remains at the center. Thus, even if a liberal king grants liberties to the people, those liberties constitute a
grant
of freedom by someone with power, namely, the king, to those otherwise without it.
³

The difference between these two approaches is stark. In the one case, the legitimate power of government originates at the periphery, and in the other case, at the center. As the framers recognized, the former, “local” approach has several advantages. For one thing, constitutional federalism helps democracy itself work better. By assuring state and local officials broader decision-making power, it simultaneously places greater power in the hands of those who elect those officials. That smaller number of people can better understand the nature of local problems. They can more easily communicate with those who stand for office and can more accurately evaluate the work of their elected officials. Moreover, by placing power in local communities, federalism reflects the democratic ideal and encourages citizens to participate in government, particularly in local government, where they can more easily make a difference.

In addition, constitutional federalism is practical. Those whom a problem affects more directly are more often likely to understand it and find ways to resolve it. Local firefighters, police departments,
health officials, and those whom they serve are more likely to understand local conditions, including community needs and resources. In essence, they possess comparative expertise. At the same time, a national bureaucracy, subject to the control of national officials and a national electorate, is needed to deal with issues that are national in scope such as those associated with foreign affairs, war, interstate commerce, and much of the environment. Ideally, constitutional federalism matches the issues with government units that will best handle them.

Constitutional federalism reflects a further practical idea—the benefits of experimentation. In the mid-1930s depression, Justice Brandeis, in his
New State Ice
dissent, succinctly expressed this idea: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” The value of not adopting a solution, even to a national problem, too quickly; of trying different approaches; and of trying out different ideas before committing the nation to one approach—all of these reasons call for ensuring that states have constitutional leeway to experiment.
⁴

T
HESE SEVERAL DIFFERENT
ideas underlie a concept that modern European courts have found useful in a roughly comparable context, namely, the concept of
subsidiarity
. This concept originated in late-medieval religious thought, yet it provides one general method for applying federalism in this more democratic age. Subsidiarity insists that governmental power to deal with a particular kind of problem should rest in the hands of the smallest unit of government capable of dealing successfully with that kind of problem. One begins by assuming that power to solve a problem should remain at the local level. One then asks whether it is necessary to abandon this assumption in order to resolve the problem. One can continue to ask this question, level by level. And one should answer it by climbing no higher up the governmental unit ladder than necessary to deal effectively with the problem.
⁵

The European Union (EU) has written this principle into its treaties. The treaties leave in the hands of the member states the authority to deal with issues that can be handled better at that more decentralized level. These issues include consumer protection, education, labor relations, taxation, and public health, as well as numerous matters of local government. At the same time, the treaties create binding legal rules at the central EU level for managing multination matters, particularly those that affect trade among the member states. The treaties also permit the EU to write laws concerning, for example, common currency, finance, worker migration, the environment, and other matters better handled at the EU inter-nation level.
⁶

The European Court of Justice sometimes resolves legal questions about the meaning of the European treaties. And it may apply the concept of subsidiarity when it does so. For example, the court considered whether Italy, a member state, could ban the sale of dry pasta not made exclusively from
grano duro
, a type of wheat grown in southern Italy. The court held that the treaties forbid Italy’s restrictions on the kinds of pasta that could be sold on the ground that they unreasonably inhibited the sale in Italy of imported pasta. The court nonetheless permitted Italy to protect its own consumers by insisting that all pasta indicate on the package whether the product is made from
grano duro.
⁷

As used today and considered in general terms, the principle of subsidiarity incorporates an approach that can help guide American, as well as European, policy makers. The approach sees power as flowing from “below,” it finds democratic advantages in localism, and it sees practical value in local control and local experimentation. So viewed, the concept incorporates the historical, democratic, and practical ideas that underlie American constitutional federalism. The underlying thought, like that of the Constitution itself, is that the national government should resolve national problems while state and local governments should retain the power to deal with more local problems, with which they are more likely to deal effectively.

Recognition of the importance of these ideas, which make up federalism, and the empirical nature of the determinations needed to apply them can help the Court maintain an effective working relationship with the states as well as with the federal government. Discussion of
several related areas of law will illustrate the interplay between basic federalism principles and empirical judgments.