Chevron and Auer undermine the rule of law.
Editor’s note: This is a modified version of Michael Greve’s comments he delivered on a panel called “Public Interest Litigation in the Modern Era” at the Federalist Society’s 2017 Annual Lawyers Convention in Washington, D.C.
I used to be in the public interest litigation business, back in the premodern era. My comments here briefly summarize an outsider’s observations on what I think has changed in public interest law and what its role should be in the future of conservative-libertarian politics.
Back in the 1990s, the playbook, which we had inherited from the Left, was to discredit establishment institutions and to amp up the volume on public debate. For example, universities were run by overpaid blowhards who stifled any informed debate over their affirmative action policies under a cone of silence. We sued to show that the emperors were stark naked. No regrets.
That still has to be the agenda in many venues. The Higher-Ed/Office for Civil Rights sexual harassment cartel—which the blob will perpetuate with or without the Office for Civil Rights—is a fine example. Go forth and litigate and discredit, especially the younger lawyers among you: it’s a stable job because college administrators are incapable of being shamed. In other domains, however, we should entertain a second, somewhat different thought.
Just which institution can we still discredit that hasn’t already done so all by itself? And do we seriously want to increase the intensity of our so-called public debate beyond Ingraham After Dark, or the tweets from the White House? Please. Within the Federalist Society and beyond, we have always rejected political nihilism and incendiary diatribes. We have stood for, and practiced, constitutional politics and reasoned debate. If we want to renew those foundational commitments, we cannot freeze ourselves in a convenient oppositional posture; we have to find ways to re-legitimize institutions and help to re-generate a public debate that is worth having. How?
For one thing we could staff agencies with people who are committed to lawful government; to effective government; and to communicating their agencies’ core mission. Incredibly, that has happened. A Chris DeMuth has noted in a characteristically fine Wall Street Journal piece, our “anti-administrativist” friends are in fact re-legitimizing the instruments of lawful, professional, constitutional government. We have lots of people like that, and they can draw on a deep intellectual reservoir, because of patient, persistent work and effort, as often as not under the Federalist Society’s umbrella and penumbras. But for that investment, we might be Venezuela.
What can public interest law contribute further to this accomplishment? Let me save tactical questions surrounding lawsuits against co-pathetic agencies for Q&A and say a few words about broader questions.
Litigation is naturally adversarial and in-your-face. Still, it can contribute to legitimating institutions and a more reasoned debate. Examples come readily to mind (emphasis on examples—I don’t mean to play favorites or be exclusive):
- Ted Frank’s Center for Class Action Fairness has blown up a ton of collusive class action settlements—cases where a missing half-inch of a Subway sandwich is worth several millions of dollars to the lawyers and nothing to anyone else. (Disclosure: CCAF is part of the Competitive Enterprise Institute, on whose Board I serve.)
- The Institute for Justice has litigated and won dozens of occupational licensing cases. (You used to need a license to massage a horse, and another to floss its teeth.)
- The Pacific Legal Foundation has successfully litigated cases like Sackett v. EPA, representing land owners whose property value is effectively wiped out by government permitting requirements.
These and similar cases brought by other energetic public interest firms illustrate the somewhat ambivalent quality of litigation. Of course, the folks on the other side are no good, and you want to take them down. But cases of this sort also help to re-center public debate on safe and sound ground between a shouting match and impenetrable legalisms. What the examples have in common is that they concern adjudication (as opposed to pre-enforcement agency rulemakings); and they involve tangible, easy-to-explain abuses.
During the Obama Administration we had to challenge—on our own, or alongside state attorney generals and trade associations—extra-legal rulemakings on the environment, healthcare, immigration, etc. Again, no regrets. But it’s fair to say that those necessary challenges look like an interest group sport: armies of combatants fight over the true and correct meaning of section 111(d) of the Clean Air Act. Engagements on that darkling plain are hard to follow for anyone who is not already invested. It’s much easier to have a reasonable public debate about whether this agency can do that to these hairbraiders, or what-have-you. So instead of longing for the good old days of suing the Obama administration over yet another lawless excursion, we should gladly leave the rulemaking to our friends and look for cases that promise to resonate broadly and, at the same time, nudge the law of adjudication—whether it’s class actions or Administrative Procedure Act matters—in a more rights-oriented direction.
My main worry, in terms of re-legitimating institutions and engendering a more constructive public debate, concerns religion and culture. Two decades ago we still had a Lockean consensus on religion and public life, which held (among other things) that we will not weaponize the administrative state against religion. That consensus is embodied in the Religious Freedom Restoration Act, passed under the Clinton Administration with overwhelming bipartisan support. It has obviously collapsed. Now, the Little Sisters of the Poor have to fight for an exemption from a statutory mandate that is (a) insane and (b) cannot conceivably apply to them. And the baker can bake and sell me a cake, or not, only upon proof that he is an artist.
Lots of folks on our side find these cases hard. I don’t. To my mind the right not to deal belongs to everyone—artist, baker, or coal miner; nun or non-religious. That right is the foundation of a free society and its institutions (especially contract). It is the first and last line of defense against the administrative state; and you need a really compelling reason to declare the right defeasible. If we can no longer defend or even articulate that line, there’s little point to obsessing over Chevron’s metaphysics.