Regulation

Is the Chevron Doctrine Really Such a Problem?

Concern about Chevron Deference Would Be Better Focused on Delegation

|The Volokh Conspiracy |

There is widespread – and well-justified – concern about the size, scope and intrusiveness of the administrative state. Many feel that the accumulation of regulatory authority within administrative agencies undermines democratic accountability and self-government.

Many critics of the administrative state focus on the Chevron doctrine, and suggest its requirement that courts sometimes defer to reasonable agency interpretations of ambiguous statutory provisions lies at the heard of administrative overreach. For reasons I explain in the new issue of National Review (and have previously noted here),I think the focus on Chevron is misplaced.

While it is certainly true that, in the hand of some judges, Chevron has allowed some agencies to run rampant, faithfully applied within its proper domain, Chevron itself is not much of a problem. As Justice Kennedy noted in one of his final opinions on the Court, some courts grant agencies "reflexive deference" after only "cursory" examinations of the relevant statutory text. This is a problem, but it's one of application, not of the underlying doctrine itself.

Further, insofar as some are (rightfully) concerned about the broad degree of interpretive authority and policy discretion agencies exercise under Chevron, the real blame lies with Congress, not the courts. As I note in NR:

The problem . . . is less that courts sometimes defer to federal-agency interpretations of ambiguous statutes through which Congress delegates regulatory authority and more that the legislature is so profligate with its delegations. . . .

The abdication taking place is less on the federal bench than in the halls of Congress, where our legislators have forgotten that it is their job, first and foremost, to enact the laws that govern the nation.

Unless and until courts are willing to enforce meaningful limits on the delegation of authority to federal agencies — a far heavier lift than constraining Chevron — the underlying problem will remain. If we want Chevron and other deference doctrines to be less important, Congress needs to stop providing so many opportunities for these doctrines to apply, both by drafting legislation more carefully and by regularly revisiting older statutes that might otherwise be used as new sources of agency authority.

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  1. I read the Law and Liberty article and it seems to me that this is where Adler begins to go off the rails :

    The message of Chevron was clear: Courts have no warrant to force agencies to regulate more expansively or aggressively than Congress has expressly required.

    Which is fine as far as it goes, but that is only half way. What we need to add is the other half :

    The Courts do have a warrant, nay a duty, to prevent agencies regulating more expansively or aggressively than Congress has expressly required.

    Thus Chevron is tackling the wrong problem, with the wrong solution. It is not for the courts to defer to agencies, it is for the courts to enforce the fundamental rule that anything which is not expressly forbidden by the legilslature, is permitted.

    If the agency’s rule complies with this principle, then the court is right to defer to the rule – not because the agency made it, but because the rule compies with the fundamental principle. If the agency’s rule fails to comply with the principle then the court has a duty to shoot the rule down.

    1. “The Courts do have a warrant, nay a duty, to prevent agencies regulating more expansively or aggressively than Congress has expressly required.”

      This doesn’t resolve anything. Legislatures usually give agencies broad latitude to regulate a wide variety of issues.

      “If the agency’s rule fails to comply with the principle then the court has a duty to shoot the rule down.”

      Right. That’s what Chevron does.

      1. I don’t think so. If there’s no ambiguity there’s no need for deference.

        If there’s ambiguity then there’s one side – the government – arguing that Montgomery Burns Mining Sludge Inc has to do something that the legislature has not expressly mandated (or must not do something that the legislature has not expressly forbidden) and another side arguing the contrary.

        Chevron says go with the government.

        The principle – that that which is not forbidden is permitted – says go with MBNS Inc.

        1. “If there’s no ambiguity there’s no need for deference.”

          Right. Chevron only applies if there is an ambiguity.

          “If there’s ambiguity then there’s one side – the government – arguing that Montgomery Burns Mining Sludge Inc has to do something that the legislature has not expressly mandated (or must not do something that the legislature has not expressly forbidden) and another side arguing the contrary.”

          The exact opposite of this happened in Chevron. The agency decided it didn’t need to force MBMS to do (or not do) anything. But “another side” (an environmental protection group) argued to the contrary that the agency was required to force Chevron to do stuff. After the trial court ruled in favor of the environmental protection group, Chevron successfully appealed. Or did you think Reagan’s EPA or Justice Gorsuch’s mother was out there trying to force the MBMSs of the world to do or not do something?

          1. 1. I know that

            2. The Chevron court decided to go with the agency in a case when the agency’s decision happened to be in accord with the correct principle (if not explicitly prohibited, then permitted) So the court decided the case the right way.

            3. But for the wrong reason, thereby establishing the wrong precedent.

            4. The right reason and the right precedent is, as I keep saying, if it’s not explicitly forbidden it’s permitted (it being some act that a private actor is up to, that the government, or some intervening busybody, wishes to stop them doing.)

            5. The wrong reason and the wrong precedent is “because the agency says so.”

            1. If your policy position is that Congress shouldn’t issue broad mandates/powers to administrative agencies, that’s a fine political argument. And it should be made vigorously to the political branches. It’s not a legal principle, though. You don’t have to overturn Chevron to get Congress to stop delegating borad power to the Executive. You just have to convince Congress not to do so. (Or convince the President to decline the invitation, as Reagan did.)

              But even if you did get Chevron reversed, your principle would still die. Congress would just create congressional agencies and give them broad mandates, and there’d be no separation of powers/nondelegation argument to level. Is there some advantage of the administrative state being run by congressional committees, rather than the Executive?

      2. “This doesn’t resolve anything. Legislatures usually give agencies broad latitude to regulate a wide variety of issues.”

        There is a legitimate question as to whether or not the US Congress actually has the power to make such broad delegations.

        1. If you’re talking about the nondelegation doctrine, it has never been a serious impediment to delegation by the legislature at the federal level. And by never I don’t mean never since the New Deal, I mean never, in the country’s history. It’s not even a real thing in states with an express separation of powers provision in their Constitution (like Texas).

          Maybe federal administrative agencies should be run entirely by Congressional committees, rather than the executive. But that isn’t constitutionally mandated.

  2. Yes, delegation is the real problem but the Courts are not going to strike down the administrative state in its entirety so tinkering with it at the margins does not matter.

    Conservatives should support the end of Chevron because while we do have conservative judges and justices that decide some cases, the administrative agencies are completely controlled by the enemies of liberty.

    1. I must say, you guys are in high form today (including the ABA blog).

      It must suck to be you.

      1. “It must suck to be you.”

        No its pretty great.

        I don’t post on anything related to the ABA, speaking of enemies of liberty.

    2. I’m not sure what to make of Chevron, as an origionalist. If the standard criticism is that origionalist judges are engaging in “law office history,” are not judges who wish to get rid of Chevron play “law office subject matter experts”?

      1. They do indeed.

      2. But the problem is that agencies are NOT subject matter experts in “interpreting statutes”, which is the actual agency action that Chevron requires deference to.

        1. If being a subject matter expert and being an expert in interpreting statutes about that subject matter were entirely severable, this wouldn’t be a problem.

          The management of fedagency are chosen for two things… their knowledge of whatever it is that fedagency does, and their adherence to the party line of the party that puts them into management positions. But the in-house legal staff that guides the agency interpretation of statutes are expert at interpreting statutes. That’s what they do for a living. In most cases, they’re career bureaucrats, which means they serve no matter which party controls the Executive branch.

          1. ” In most cases, they’re career bureaucrats, which means they serve no matter which party controls the Executive branch.”

            Which is not even remotely contrary to having originally been chosen for their adherence to the party line of the party that put them there. Indeed, if you want long term control of an agency, that persists as a practical matter even when your political opponents are nominally at the helm, these are the sort of positions you focus on nailing: Nominally non-political career positions that civil service rules render secure against the efforts of your opponents to recapture an agency after an election.

            1. If you set out to hire unethical lawyers, you get unethical lawyers.

          2. “But the in-house legal staff that guides the agency interpretation of statutes are expert at interpreting statutes. That’s what they do for a living.”

            This might be true at the federal level–though I doubt it. It’s certainly not true at the state level. There’s nothing expert about the statutory interpretation skills of your average agency legal staff. There is a lot of turnover, they’re often bored, or lazy. Or too young to have the expertise. Or incompetent.

            How is it you think someone ends up on the staff of, say, a state’s dental board?

            1. “There’s nothing expert about the statutory interpretation skills of your average agency legal staff.”

              Reading statutes doesn’t fall under a lawyer’s area of expertise? My god man, it takes three years of graduate-level education to learn how to do it!

    3. “Yes, delegation is the real problem but the Courts are not going to strike down the administrative state in its entirety so tinkering with it at the margins does not matter.”

      It’s not the job of the courts to strike down the administrative state. If anyone is going to do it, it will be done by Congress. (When they write the enabling statutes for new agencies.) Or, it will be done by Congress plus the President (when they re-write the enabling statutes for existing agencies.)

      Conservatives who ever whined about “legislating from the bench” should applaud Chevron. (Yes, I know it’s hard to support federal agencies when they decide to do things that aren’t Conservative…. but if you like judicial restraint, you like judicial restraint even when it works against you.)
      Now, the ones who didn’t whine about “activist judges” but simply bided their time, certain that eventually, they’d get to appoint judges who’d legislate from the bench the way they’d prefer, and never pretended they were opposed to judicial activism, they should get to enjoy the fruits of their patience (of course, they also must know that eventually the pendulum will swing back again.)

      1. I am forced to agree with that comment, JP. I would just say that the conservatives have said, with regards to the courts, that “if you can’t beat ’em, join em,” because otherwise they leave an entire field in the culture war to their opponents who won’t hesitate to take advantage. The last conservative contender who was serious about putting the courts in check was Buchanan in 1992.

        1. “I would just say that the conservatives have said, with regards to the courts, that “if you can’t beat ’em, join em,””

          Yes, judicial restraint is a suckers game unless both sides play it.

          1. Now, on that note, where are those 5-4 cases rolling back some unconstitutional gun control laws?

            Oh…that’s right. My perception is that “our” side spends most of it’s litigation energy making sure people who are not paying student loan debt don’t have their licenses revoked by the state, and that food trucks may park where they may. They are hunting squirrels when they should be hunting moose.

            1. That’s because the litigation activists on “our side” are really economic oriented libertarians.

              1. They are indeed.

  3. 1. Who caused the problem?
    2. Who can fix it?

    The writer is saying that since Congress caused the problem, Congress should fix it. But a better answer is that if Congress caused the problem and Congress won’t fix it, the courts can, and should, fix it.

    1. Ok. What do you think the result should have been in the Chevron case if the courts fixed whatever problem you’ve identified? Why?

  4. Are you saying that instead of Chevron, we should blame W. Hampton, Jr. & Co. v. United States, and Mistretta v. United States?

    From Mistretta “Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”

  5. Delegation and Chevron are two acts that work in concert. How this is not easily understood is absolutely bonkers.

    Yes the courts let agencies write too many regulations via the nondelegation doctrine’s under-enforcement. And yes that exacerbates the problem of Chevron deference by expanding the number of rules that are essentially 1 branch interpretations of vague statutes. However, that doesn’t mean Chevron wouldn’t be a problem with a more tightly enforced nondelegation jurisprudence. It still would be.

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