Chevron and Auer undermine the rule of law.
The notion that judges should uphold congressional legislation if it can be supported by a possible interpretation, even if not the best, of the Constitution remains evergreen in constitutional law. This conception of judicial deference, often referred to as judicial restraint, figures prominently in debates about recent important cases in constitutional law. For instance, some commentators believe that an obligation of judicial deference militated in favor of upholding the individual mandate in litigation over the Affordable Care Act,
I have recently posted a paper that provides an originalist resolution of this issue. Called The Duty of Clarity, the article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution. That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision. But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.
It thus rejects two common, but opposing views about judicial deference. One is a no-deference view—the claim that no obligation of clarity should exist in judicial review: judges should invalidate their statutes if they think that there is conflict with the Constitution, even if they cannot come to a stable and clear view that there is such a contradiction. The other is the Thayerian deference view—the claim that a statute should be upheld so long a rational person could provide an interpretation of the statute that would uphold it. This latter view is associated with James Bradley Thayer, whose 1893 article expounding this view, The Origin and Scope of the American Doctrine of Constitutional Law, remains one of the most famous ever written in American constitutional law.
The position offered here also has the advantage of being the best way of reconciling two clear legal methods at the time of the enactment and in the early republic: declarations that the Constitution should invalidate legislation only when its meaning is clear and aggressive judicial attempts to consider all kind of materials to clarify meaning. Justice James Iredell is sometimes seen as the original poster boy for judicial deference, but a closer look at his jurisprudence reveals this same combination of belief in an obligation of clarity with robust confidence in the use of many methods to elucidate text, even when those methods required—in the words of one of his official letters– canvassing “every consideration” and making “difficult” judgments.
This reconciliation also comports with the jurisprudence at the time of the Framing which saw judges as engaging in a disciplined drawing out of legal meaning rather than engaging in judicial lawmaking to create meaning. Judicial deference to avoid interstitial lawmaking in the penumbra of a text thus is an anachronism. But the judicial obligation of clarity as an attitude that enforces care and requires the judge to consider all the possible ways of reconciling a statute with the commands of the Constitution reflects an originalist approach. The requirement of clarity thus acted not so much to cramp a vigorous and wide-ranging judicial evaluation to discover meaning but instead to underscore the duty of judges to put aside passions and political desires and decide only on the basis of discovering the content of law.
Here is a table illustrating the difference between the originalist position offered here and the “no deference” and “Thayerian deference” position. There are two axes of difference: the obligation to consult clarifying methods distinctive to law before deciding and the standard of certainty required before displacing legislation.
|Clarifying Methods||Displacement Standard|
|No Deference||Yes||Preponderance of evidence|
|Thayerian Deference||No||Beyond reasonable doubt|
|Originalist position||Yes||Obligation of clarity|