One of the most prominent features of biopolitics is the emergence of administrative law. Created by statutory authority, numerous governmental agencies engage in rulemaking at a very granular level to interpret and apply broad statutory provisions. For example, if a statute says that “banks” are to be regulated in the context of lending, an administrative agency might be asked to issue rules on whether payday lenders should be considered “banks” under the statutory definition. Or, to adopt an example well-known from philosophy of law, suppose a federal law were to say “no vehicles in parks.” The Park Service would be tasked with deciding what, exactly, constitutes a “vehicle.” Is a skateboard a vehicle? How about an actual jeep, minus its engine, to be used as part of a sculpture to honor veterans? As the example illustrates, most of the actual regulatory power the statute has arises not in its vague provisions, but in the rules that interpret and apply those provisions.
Perhaps the best-known, recent real-world examples concern the Clean Air Act (CAA). In 2007, the Supreme Court ruled that the EPA had the authority to – and was required to – regulate greenhouse gas emissions under the CAA. The core question was whether carbon dioxide was a pollutant as defined by the CAA, which stipulates that the EPA has rulemaking authority to regulate emission of “any air pollution agent ... , including any physical, chemical, ... substance ... emitted into ... the ambient air,” and ought to do so when the pollutant “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” If the EPA decides not to regulate such a pollutant, it needs to come up with a good reason why not, which the Court in this case concluded it had not. The EPA was thus required to come up with rules about carbon emission for new vehicles. More recently, in 2015, the Supreme Court ruled that the EPA exceeded its regulatory authority in restricting various emissions from coal plants because it failed to consider the cost of implementing those regulations. These cases point to the rise of biopower as a form of governance, as administrative agencies grow in power relative to other kinds of governance, and become the locus of the sorts of micro-regulations that Foucault identified as the “police” function.
One reason these agencies have so much power is the standard for review. Federal Courts examine agency rules under what is known as the “Chevron Rule” (named after the Chevron v. National Resources Defense Council (1984) decision in which it was articulated), which (as the EPA cases put it) “directs courts to accept an agency’s reasonable resolution of an ambiguity in a statute that the agency administers” So if, for example, our hypothetical agency decides that payday lenders are “banks,” then it is to be given deference unless that interpretation is unreasonable or Congress has unambiguously said that they are not. If the Park Service decides that skateboards are vehicles, then the question is whether the decision is reasonable, given the statute. If the statute directly says they are not, then the regulatory determination is illegitimate (and vice versa). If it doesn’t say, then the rule should be considered in the context of the law as a whole. If the statute was clearly directed at pedestrian safety, then such a determination would probably be reasonable. If the statute was clearly intending to reduce carbon pollution, then the determination would probably not be reasonable. That is, the courts don’t have to agree with the interpretation, or like it; they just have to find that the interpretation is reasonable by way of a two-step process. From the Chevron decision:
“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute”
The standard of course leaves a lot to be done, especially around questions of reasonability, but the net effect is to clearly establish that, when in doubt, defer to the agency in question.
However, that deferential standard is currently being challenged in legislation introduced in the House, according to Dennis Crouch at Patently-O. The “Separation of Powers Restoration Act” (SOPRA) replaces the Chevron deference with a de novo judicial review. The statutory revision is straightforward:
“(a) To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action and decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section”
Where once there was deference, there would now be de novo review. In other words, if I understand correctly, SOPRA is an effort to legislatively overrule the Court’s determination that “the court does not simply impose its own construction on the statute.”
I confess that I am unsure what to make of this, should it become law (and Crouch notes that democrats might cheerfully vote for it, as it would weaken the Trump presidency considerably. Republicans hate the EPA, Consumer Finance Protection Bureau, etc., so everybody has a short-sighted reason to vote for the bill). On the one hand, agencies have a lot of power, and certainly if one subscribes to the Foucauldian maxim that we want to be a “little less governed,” SOPRA seems like a good idea.
On the other hand, I simply cannot imagine the torrent of litigation that such a law would unleash. Any agency rule that any party did not like could be challenged in Court, and the power to decide whether the rule was legitimate would fall fully into the hands of the Courts. Not only would this create a lot business for lawyers and courts, it would leave a lot of uncertainty surrounding agency rules, and it would also invite a lot of arbitrary and conflicting standards: it would be difficult to know in advance whether a rule would be upheld, and different jurisdictions might operate under different rules (the Supreme Court would be unable to review all the lower court cases that SOPRA would enable, even if that were all it did). I feel fairly certain that the Supreme Court would try to articulate a standard for making the review process smooth and predictable (and thus reduce its arbitrariness), but it is not clear what that standard would be, as SOPRA significantly constrains the available options. It also, however, wouldn’t slow the need for rulemaking, as not only are there many, many existing federal agencies with ambiguous statutory authority, it’s impossible to imagine passing legislation at the level of granularity that rulemaking covers, or legislation that would accurately predict new developments (like the discovery that carbon dioxide is a dangerous pollutant).
In any case, it’s a bill to keep an eye on, as it has potentially significant effects on the way power functions in our current society; more specifically, it has the potential both to substantially weaken biopower as a mode of governance and to introduce significant arbitrariness into its operation.