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.