The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judge Brett Kavanaugh, Donald Trump's latest Supreme Court nominee, is a critic of the Chevron doctrine—the legal rule requiring federal judges to defer to executive branch agencies' "reasonable" interpretations of federal law in situations where Congress has not clearly addressed the issue in question. Neil Gorsuch, Trump's previous Supreme Court appointee, is an even more thoroughgoing Chevron skeptic. This has led some on the right to hope and many on the left to fear that Kavanaugh's confirmation will lead to the gutting of Chevron, which in turn would strike a major blow against the "administrative state." For the most part, neither the hopes nor the fears are justified.
Kavanaugh's appointment may well continue (or even accentuate) the Court's growing tendency to cut back on Chevron deference—though it is not clear that Kavanaugh's Chevron skepticism is greater than that recently expressed by Anthony Kennedy, the justice Kavanaugh would replace. But even if the Court imposes tighter limits on Chevron deference or eliminates it entirely, that would not put much of a dent in the administrative state
In discussing this issue, many people tend to forget that the Supreme Court only decided the Chevron case in 1984, and we had a large and active administrative state long before then. Somehow, the powerful agencies established in the Progressive era, the New Deal, the Great Society, and the Nixon administration managed to survive, thrive, and regulate without Chevron.
Pre-Chevron administrative agencies did enjoy the benefit of less extensive forms of judicial deference, such as "Skidmore deference." Those would likely persist even if Chevron were to be severely limited or overruled. But even if the Supreme Court were to completely eliminate judicial deference to administrative agencies' interpretations of federal law (thereby treating them the same as any other litigant), the latter would still wield enormous discretionary power. In a world where there are far more federal laws than any administration could hope to effectively enforce, they would still have broad discretion to determine which violators to go after, and how aggressively. They would also retain control over a broad array of technical questions related to enforcement rules, scientific standards for regulation, and other issues.
Even on the specific question of interpretation of statutory law, the elimination of formal deference probably would leave in place a good deal of deference in practice. Across a wide range of issues, generalist judges seeking to manage large case-loads may still give special weight to the views of supposedly expert agencies, even if they are not formally required to do so. This is especially likely to happen when it comes to questions that are highly technical and not ideologically controversial. Deference would be weakened, but far from completely eliminated.
To the extent that ending Chevron would put agencies on a tighter leash, it is far from clear that this would necessarily benefit the political right more often than the left. As my VC co-blogger (and leading administrative law scholar) Jonathan Adler points out in a New York Times article, a reduction in judicial deference could stymie deregulatory policies as readily as those that increase regulation. The Chevron decision itself deferred to a Reagan administration policy that shifted air pollution regulation in ways decried by environmentalists.
In policy areas such as immigration and drug prohibition, most conservatives—especially since the rise of Trump—actually favor more regulation than most of the left does. Pereira v. Sessions, one of the Supreme Court's recent decisions cutting back on Chevron deference strikes down a policy that sought to make it easier to deport immigrants. The same is true of then-Judge Gorsuch's most famous lower court opinion criticizing Chevron.
Ending Chevron deference would not gut the administrative state, or even systematically advance the cause of deregulation. It would, however, have some important beneficial effects. It would put an end to what then-Judge—and future liberal Supreme Court justice—Stephen Breyer, writing in 1986, called an "abdication of judicial responsibility." Neil Gorsuch expressed similar views more recently, calling Chevron "a judge-made doctrine for the abdication of the judicial duty." The Constitution gives judges, not agency bureaucrats, the power to interpret federal law in cases that come before the courts. Getting rid of Chevron would help restore the proper constitutional balance in this area.
The elimination of Chevron would also increase the stability of legal rules, and make it harder for administrations to play fast and loose with the law. As Gorsuch pointed out in a well-known opinion he wrote as a lower court judge, Chevron deference often enables an agency to "reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court]." When the meaning of federal law shifts with the political agendas of succeeding administrations, that makes a mockery of the rule of law and undermines the stability that businesses, state governments, and ordinary citizens depend on to organize their affairs. A new administration should not be able to make major changes in law simply by having its agency appointees reinterpret it. Such power is even more dangerous in an age of severe polarization and widespread partisan bias.
Conservatives suspicious of liberal bureaucrats have good reason to oppose Chevron. But the same is true of liberals who believe (often correctly) that GOP administrations appoint agency heads who bend the law in order to advance partisan agendas. If you don't trust the likes of Jeff Sessions or Scott Pruitt to interpret the law objectively, you should be happy to see a judiciary that defers to them as little as possible.