Chevron and Auer undermine the rule of law.
Administrative Law—both in its New Deal and its modern, post-Chevron version—rests on legislative supremacy. In other words, it assumes that there’s a halfway functional Congress. What if there isn’t? What happens when Congress fails to update ancient statutes and, when legislating at all, enacts convoluted statutes (such as Dodd-Frank or the ACA) that no one can make sense of? What if everyone starts taking it for granted that Congress is hopeless?
Ashley Parrish and I explore the question in a forthcoming article in the GMU Law Review. (Mr. Parrish, a dear friend and frequent co-conspirator, is a partner at King & Spalding.) What happens when Congress goes AWOL, we explain, is that agencies start playing games at the outer limits of the law, and often beyond those limits. They unilaterally re-write their organic statutes. They play procedural shell games. And they start waiving regulatory requirements for folks they like, while hitting disfavored industries with a ton of bricks.
What happens next, we further explain, is that AdLaw doctrines we all thought we knew start to bend. Those doctrines aren’t all that constraining to begin with. They weaken further when the ordinary and obvious judicial response to agency overreach—“you need congressional authority for that”—seems absurdish.
The full-length article shows that rewrites, shell games, and waivers happen a lot—in environmental law, energy law, financial regulation, health care, and pharmaceutical regulation. Depressing reading. But if we want to be serious about legal doctrines for the administrative state, we should start with a realistic appraisal.