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The Agency Lack of Bias Fallacy

With the changes in the Supreme Court, the Chevron and Auer doctrines are both in jeopardy of being significantly cut back or eliminated. I generally favor eliminating both doctrines. While there are arguments on both sides of the matter, I find the defenders of these doctrines fail to address one of the key disadvantages of judicial deference to administrative agencies.

The Chevron doctrine holds that when an agency interprets a statute it administers, its interpretation is often entitled to deference. In practice, this means that the agency’s interpretation will prevail in court so long as it is not unreasonable. The Auer doctrine is similar, but it applies to an agency’s interpretation of its own regulation. To oversimplify, the agency will prevail on its interpretation unless its interpretation was unreasonable.

The most common argument for providing Chevron and Auer deference is that the agency has expertise. It knows more about its statutes and regulations than courts do. Moreover, it has more policy expertise about the area than courts do. Thus, the agency should be not be reversed unless it is unreasonable. (Another argument involves the lower decisionmaking costs of agencies, but let’s put to the side for this post.)

This argument from expertise is not without weight. Other things being equal, we certainly want more expert people interpreting statutes and regulations than less expert people. But defenders of Chevron and Auer usually argue as if this is the main consideration, or even the only relevant one. But this is not true. There is also the issue of agency bias and the way these forms of judicial deference reduce incentives to interpret the law well. I call the failure to acknowledge these concerns “the agency lack of bias fallacy.”

The interpretation of a statute or a regulation is normally thought to be judicial power. The traditional separation of powers recognized that combining that power with executive power (or legislative power) led to bias and bad results. For example, if the same entity both brings an enforcement action and adjudicates the meaning of the law, then it has incentives to be biased as to both enforcement and adjudicatory incentives.

First, consider the bias that is created for enforcers. The enforcers will not have to ask whether their interpretation of the law is one that will persuade an impartial judge. Instead, they can merely ask whether they can get away with an interpretation that allows them to prosecute the defendant they are going after.

Second, consider the bias that is created for adjudicators. The adjudicators will not simply ask what is the best interpretation of the law. Instead, they will ask what interpretation will further the prosecutions they are conducting.

The basic point is that conferring judicial power on an executive agency makes it worse at doing its job. (The same point applies to the combining of other powers, such as legislative and judicial power.) Thus, even if one believes that expertise (or low decisionmaking costs) is a benefit of Chevron deference, one must consider the increased bias that it permits and encourages. Most defenders omit this consideration, which renders their analysis seriously incomplete.

Reader Discussion

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on December 14, 2018 at 06:57:47 am

Most defenders also ignore that deference violates the Constitution whereas justices/judges are charged and sworn to render independent and unbiased decisions; and, that it also violates a defendant's due process rights.

That deference violates the Constitution, most especially by those sworn to uphold it, (This also applies to attorneys who argue for deference. ), should be "end of story", "end of discussion".

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Paul Binotto
on December 14, 2018 at 09:26:05 am

I understand how conservatives started this mess. Indeed, at the time, back in the day of Ann Gorsuch's EPA under Ronald Reagan, I applauded the law-review-like cuteness and political cunning of Reagan's EPA and the shrewd appellate environmental advocacy of Reagan's DOJ. I was wrong; they were wrong. Justice Gorsuch's (wrongly-maligned) Mom was wrong. The Supreme Court was wrong , as should have been a matter of res ipsa loquitur once the world saw that Justice Stevens wrote the majority opinion.

And 34 years later, as Oliver Hardy should have said to Stan Laurel, "Well here's another nice mess (we've) gotten (ourselves) into."

What is so amazing about the mess is how it's so legally- inappropriate on its face. One need not engage in constitutional depth analysis to see that.

Simply imagine any case or controversy being adjudicated in a federal court in which both parties are represented by skilled counsel, expert and experienced in the subject matter of the law at issue, and in which the arguments BY THE COUNSEL FOR ONE PARTY as to both the law at issue and the very jurisdiction of the court are given greater weight ( indeed, a presumption of correctness) than the arguments of counsel for the other party or the opinions of the judges.

It is inconceivable on its face!The notion is preposterous and plainly so!

Such a scenario is so obviously a denial of Due Process for the disfavored party and a violation of the Separation of Powers and an affront to the prerogatives and duties of Article III courts as to make it's 34-year-long acceptance appalling.

It's like looking back at Korematsu and thinking, "I can't believe we ever did that, that the Attorney General recommended it, that the President of the United States approved it, that the Solicitor General stood up in court and advocated for it and that the Supreme Court said it was constitutional."

It's simply amazing how many patently stupid things the best and brightest do, and do brazenly, without even blushing and with never an apology later.

The Vietnam War comes to mind.

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Pukka Luftmensch
on December 14, 2018 at 12:04:52 pm

"I understand how conservatives started this mess. "

This mess originated under the FDR admins when Congress created multiple Executive agencies with rule making power unconstitutionally delegated to them, all in the name of fighting the Great Depression which government itself created.

This like most expansions of government power is laid at the feet of the statists, generally Progressives and liberals. Conservatives at best can be charged with failing to roll back these egregious violations of Constitutional limits...

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OH Anarcho-Capitalist
on December 14, 2018 at 15:10:27 pm

"The Vietnam War comes to mind."

This ALSO comes to mind.

"Instead, they will ask what interpretation will further the prosecutions they are conducting."

Is Rappaport here alluding to the Office of the Special Counsel?

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gabe
on December 14, 2018 at 15:34:33 pm

I understand and agree with your general point. I was talking specifically about the historical origin of Chevron deference, which had nothing to do with FDR and as to which I am correct.

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Image of Pukka Luftmensch
Pukka Luftmensch
on December 14, 2018 at 15:43:39 pm

Doubt it.
BUT, almost every federal administrative agency enforces numerous laws and myriad regulations with requirements and prohibitions the violation of which constitutes a crime punishable by criminal penalties and imprisonment. Most of these laws and regulations require no showing of mens rea. It is very probable that Chevron deference could be accorded the prosecutor in such cases, further empowering the police-state forces of the Administrative State.

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Pukka Luftmensch
on December 14, 2018 at 18:07:50 pm

I was not suggesting that Chevron is applicable to OSG - only that like the Agency buggers, the OSG also interprets laws / regs to suit their rather nefarious purposes and illimitable aims.

Consider it a corollary modality of government behavior.

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gabe
on December 15, 2018 at 07:44:22 am

Do you have a jury of your peers during administrative adjudication ?

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Jim Lewis
on December 15, 2018 at 11:07:13 am

And now for some supporting evidence:

From NRO, rich Lowry on the "porn hush payments"

"But if we are going to ruin people’s lives and potentially take away their liberty on the basis of the law, we should make sure it is written in such a way that we can reliably answer in advance whether something is legal or not. If we want to make it illegal for anyone running for office to enter into a NDA with a mistress, let’s pass that law, or if we want pay-offs to mistresses to be considered campaign expenses (which is the logic of the government’s position), let’s write that down, too. But the SDNY has adopted an adventurously aggressive interpretation of an ambiguous area of the law, probably in part because of who the target is and how unpopular he is. This doesn’t strike me as a great victory for the rule of law."

Perhaps, a form of deference is BEING afforded Prosecutors after all as it appears that the Prosecutor is the sole person "interpreting" the meaning of the statute.

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gabe
on December 15, 2018 at 12:29:00 pm

Good points Mr. Gabe. The definition of "Blue Laws" is quite different today than what they meant when I was growing up in Pittsburgh and everything but Stop N Go's were closed on Sundays....Now they mean the Law as interpreted by Dems...

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Image of Paul Binotto
Paul Binotto
on December 15, 2018 at 13:26:39 pm

Your point, Gabe, is important and, logically, closely relevant to Rappaport's and my discussion of Chevron deference. Agency regulators are like criminal prosecutors in that, like prosecutors, they are presented with myriad opportunities for the constitutional abuse of (what Lowry calls) "adventurously aggressive interpretation of an ambiguous area of the law."

Over-legislation and poor statutory draftsmanship (Congressional misfeasance) characterized the explosion of regulatory statutes during the New Deal and then again during the decade 1965-1975. They were to constitutional restraint what the end of Prohibition was to the distilling industry. Adding Chevron deference to the constitutional calamity was judicial misfeasance which aggravated the constitutional abuse of which Lowry speaks, much like "happy hour" encourages drunkenness. Together, these forces have incrementally raised the temperature of the constitutional waters and given us, today, the authoritarian Administrative State under which we suffer like slowly boiling frogs.

For law-enforcement, over-criminalization and poor draftsmanship (both the result of Congressional misfeasance) greatly incentivize the worst form of the constitutional abuse which Lowry describes, which is politicizing criminal law (prosecutorial malfeasance.) We're witnessing now the most dangerous manifestation in American history of that particular form of constitutional abuse.

The moral: "Power tends to corrupt, and absolute power corrupts absolutely." For Congress and the Supreme Court to cause, encourage or tolerate "adventurously aggressive interpretation" of law is constitutionally-corrupting and risks corrupting absolutely. Chevron-deference is not just unconstitutional, it's subornation of constitutional corruption.

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Image of Pukka Luftmensch
Pukka Luftmensch
on December 31, 2018 at 05:46:10 am

[…] my last post on Administrative Law, I noted that many defenders of Chevron deference ignore an essential aspect […]

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Image of Chevron Cannot Be Justified As An Agency Determination of Policy
Chevron Cannot Be Justified As An Agency Determination of Policy
on January 01, 2019 at 10:40:23 am

[…] my last post on Administrative Law, I noted that many defenders of Chevron deference ignore an essential aspect […]

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Image of Chevron Cannot Be Justified as an Agency Determination of Policy – Building Blocks for Liberty
Chevron Cannot Be Justified as an Agency Determination of Policy – Building Blocks for Liberty

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.