Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “Ambiguity Is Key to Triggering Agency Deference” by Jon Steingart. (Read the full version – subscription required.)
Following is an excerpt:
The Chevron deference is a powerful precedent that can require a federal court to yield to an agency's interpretation of a statute, but a court is free to undertake its own analysis when the administrative law framework doesn't apply, attorneys told Law360. ...
Paul DeCamp, a member of management-side firm Epstein Becker Green and former DOL Wage and Hour Division administrator, told Law360 that ambiguity is context-driven. Checking for ambiguity doesn't happen when Congress debates or passes laws, but instead occurs later when a law is actually applied in a real-world scenario, he said.
"It's really the question of: Does the statute speak to this specific issue or not?" he said. "You have to figure out ambiguity in hindsight."
Overreliance on deference to agency interpretations can distort separation of powers by elevating policy decisions of executive branch officials that should be made by elected representatives in Congress, DeCamp said.
"When what the agencies are doing is in effect writing a law that couldn't get passed by Congress, then there's a concern that that's where the executive branch is trying to make the law," he said.
Passing legislation that gives an agency authority to issue regulations is also a policy choice that Congress can elect, DeCamp said. But there's a difference between lawmakers telling an agency to fill in some details and an agency overstepping its role, which is to execute the laws that Congress passes, DeCamp added.
But a law that directs an agency to act by adopting regulations could be problematic, too, he said, because a court may find that Congress went too far by outsourcing its policymaking duty.
The FLSA provision that lets the DOL define and delimit roles that are exempt from overtime may be such an example, DeCamp said.
A court could find Congress handing the DOL the power to define and delimit terms in a law it enacted is an abdication of the legislature's role. The result would likely be the court invalidating the regulations that the agency adopted pursuant to authority Congress didn't have the power to give it, he said.
The theory that the Constitution bars Congress from handing off policymaking authority to another branch of government is called the nondelegation doctrine.
"It's really about nondelegation and about how far can Congress go in giving authority to the executive branch to make policy," he said. "The courts are there to police the ever porous boundary between the executive and the legislative branches in making federal policy."
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