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The Chevron Doctrine’s Shrinking Domain

As a summer clerk at the Solicitor General’s office in 1983, I worked on the brief in the famous administrative law case, Chevron v. National Resources Defense Council. I had no idea then that it would become one of the most cited cases of all time. Its key holding is that courts should defer to any reasonable interpretation by an executive agency of a statute under that agency’s jurisdiction unless Congress clearly had a specific intent to the contrary. In the now-familiar parlance, under Chevron Step One, it was the judiciary’s task to determine whether the statute’s meaning is clear, but under Chevron Step Two, it was the agency’s task to interpret anything that was not clear. Thus, Chevron handed to agencies a major domain of power—that of legal interpretation over a wide range of issues.

Today, Chevron is under fire. It has not been overruled nor do I think it is likely to be. But its domain is shrinking and will continue to get smaller. If President Trump gets another term, it may well resemble the Cheshire cat—a still-powerful symbol for a body of law without much doctrinal substance. Just as Chevron was an iconic decision marking the continuing rise of the power of the administrative state, its relative decline in importance captures the three reasons that the administrative state is being cut back. Thus, this essay will use Chevron to introduce these three factors—the return of originalism, the rise of textualism, and the greater distrust of unsupervised expertise—that are transforming administrative law and, with it, the administrative state.

The Return of Originalism

The most important influence is the rise of originalism, because important elements of the administrative state, including Chevron, are in tension with the original Constitution’s separation of powers. For instance, given that the Constitution grants Congress legislative authority, it seems anomalous that the executive can wield these powers and make its own determination of what is legal through statutory interpretation. To be sure, the question of where the legislative power ends and the executive power begins is a difficult one, but that does not mean that a line cannot be drawn. For instance, Chief Justice John Marshall captured an important distinction in the Founding era when he suggested that Congress must legislate on important subjects when they affect private rights even if the executive could be left to fill in the details.

Chevron thus potentially ran afoul of the nondelegation doctrine by allowing the agencies to make major decisions about what the law meant, not just fill in the details of intricate statutes. But in the recent case of King v. Burwell, Chief Justice Roberts made clear in a majority opinion that the Chevron doctrine would not apply to major questions, such as the one in that case (whether Affordable Care Act tax credits should be provided to those purchasing insurance under federal as well as state exchanges). While Roberts suggested that Congress would not want Chevron to apply to such major questions, the more persuasive basis of the decision is the nondelegation doctrine. Applied to major questions, Chevron, as originally decided, sustains a huge delegation of legislative power to the agency, permitting it to interpret a central element of a statute.

By using formal methods of statutory interpretation, Scalia discovered clear meanings in the text and therefore reached Chevron Step Two less than other justices.

The renewed influence of originalism on nondelegation issues is even clearer beyond Chevron cases. For instance, in United States v. Gundy, Justice Neal Gorsuch objected, on originalist grounds, to the decision by the plurality of the Court allowing Congress to delegate to the Attorney General the determination of which sex offenders convicted before the enactment of a sex-offender registration statute would nevertheless have to register after its enactment, because the statute provided no substantial limits on his discretion. And although Gorsuch’s opinion was a dissent, Justice Samuel Alito, who gave the decisive vote for the majority, wrote in a concurrence that he too would be willing to reconsider the delegation doctrine in a more appropriate case. Justice Bret Kavanaugh did not participate in Gundy, but has since indicated that he too is open to reexamining the doctrine that is fundamental to the discretionary power of the administrative state.

The Rise of Textualism

Textualism is also playing a part in shrinking Chevron. The doctrine seems to assume an intentional method of interpretation of statutes. In Chevron, Justice John Paul Stevens stated that an agency is bound by “a clear intent of Congress,” but “otherwise can provide its own reasonable interpretation.” But if textualism is used as the method of statutory interpretation, the question becomes not whether Congress had any conscious intent on a particular issue, but rather whether the text speaks to the issue. That more encompassing inquiry can reduce the scope for agency power under Chevron Step Two by having the judiciary settle more matters under Chevron Step One.

Justice Scalia’s jurisprudence exemplifies this point. While he was a defender of Chevron, he reached Step Two less than any other justice. By using formal methods of statutory interpretation, he discovered clear meanings in the text. Indeed, his last book, Reading Law, offers scores of clarifying canons for interpreting statutory text. The kind of judges appointed by Trump thus may complete a trend that Scalia himself initiated: reducing the significance of Chevron by discovering more meaning in statutes than Chevron assumed. They are likely to extend this influence throughout the judiciary.

Textualism is reshaping administrative law more generally. In Kisor v. Wilkie, Justice Kagan cut back substantially on what is called Auer deference—the deference that the judiciary is to give to an agency’s interpretation of its own regulations. She emphasized that deference was due only to “genuinely ambiguous [regulations], even after a court has resorted to all the standard tools of interpretation.” Thus, Kagan effectively endorsed a textual approach to determining ambiguity, including applying traditional canons of interpretation. It is significant that even the more liberal justices are willing to cut back on the extent of Auer deference and encourage the judiciary to first engage in a searching textual analysis of these regulations before giving any deference to the agency. Gorsuch, writing for Justices Thomas, Alito, and Kavanaugh, would have gotten rid of any fixed domain of deference for agency interpretation of its own regulations.

Distrust of Unsupervised Expertise

Finally, confidence in the unsupervised expertise of agencies has waned since the apogee of the administrative state, and this sentiment has also reshaped Chevron. Since Chevron, the Court has held that deference should not apply to casual determinations of statutory meaning by an agency, but only to ones made under formal conditions that received the blessing of agency heads, as in notice-and-comment rulemaking.

The Court has been less willing to defer to the expertise of bureaucrats in other contexts as well. In Department of Commerce v. New York, the Court held that President Trump’s Secretary of Commerce had the authority to reject the opinions of the experts in the census office that adding a citizenship question to the census form would fail to improve, and possibly undermine, the accuracy of the Census Bureau’s count of citizens. So long as the Secretary gave any plausible reasons for the rejection of his experts’ advice, the Court concluded that his decision should be upheld because Congress had delegated administrative authority to the Secretary and not to the census experts. (The Court concluded that the reason the Secretary gave for the change was pretextual and thus invalidated his decisions, but would have upheld him had his reason been genuine.)

In Free Enterprise Fund v. Public Accounting Oversight Board, the Court recently insisted that the members of an oversight board appointed by the Securities and Exchange Commission must be removable at will by the SEC, itself a commission that the Court assumed was insulated from removal by the President except for good cause. The Court reasoned that the double insulation from removal provided by statute was inconsistent with the political control that the Constitution demanded. As the Court stated “One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders.” Here two factors—a return to originalism (and the unitary executive it contemplates) and skepticism about unsupervised expertise—pointed in the same direction.

So long as the five-member formalist majority holds sway on the Supreme Court, these three factors will combine to move toward cabining the power of the administrative state. If President Trump is reelected and appoints more justices like Gorsuch and Kavanaugh, these trends will accelerate.

Reader Discussion

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on April 23, 2020 at 09:45:05 am

No fair-minded judge who sees the scales of justice as balanced and who is committed to uphold the constitution should find consolation that the Supreme Court, one smearing red stroke at a time, seeks to put lipstick on the pig of Chevron/Auer deference.

Chevron/Auer deference is a stark injustice which stacks the litigation deck in favor of one party, the United States government (as if it needed more advantage.) Chevron/Auer deference creates an unlevel playing field in which the Court grants the already overwhelmingly-favored United States government the added advantage of playing downhill while forcing the already overwhelmed and disfavored defense to carry its arguments uphill.

To use Justice Kavenauh's Kisor metaphors, to deploy Chevron/Auer deference is to "... put a thumb on the scale in favor of an agency when courts interpret agency regulations." and to offend the principle of fair play: "Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules."

Chief Justice Roberts in his Justice Kennedy moment kept Auer alive in Kisor while weakening it (Kisor/Roberts is to Auer what Casey/Kennedy is to Roe vs. Wade.) Roberts confessed his diffidence (timidity masked as stare decisis?) in not addressing the injustice head-on. Roberts says, "That is not to say that Auer deference is just the same as the power of persuasion...; there is a difference between holding that a court ought to be persuaded by an agency’s interpretation and holding that it should defer to that interpretation..."

Litigation is an adversarial contest in which the burdens of proof and persuasion and the benefits of presumption are apportioned between the parties according to the demands of the constitution and Congress and the traditions of common law. Chevron/Auer deference boldly crosses that legal divide by virtue both of creating (and then granting on a case-by-case basis) special judicial privilege for one adversary in the contest, the already heavily-favored party in the litigation. Neither the constitution, nor the Congress nor the common law, but the very court that must decide the case, has chosen to favor the United States government in such a way as to exert the direct effect of lowering the government's burden of proof, empowering the government with the presumption of correctness and artificially enhancing the government's power of persuasion.

These judicial grants of special government privilege are to private citizen litigation against the federal government what home-team umpires are to the home team, what steroids were to Alex Rodriquez, what corked-bats were to Sammy Sosa. Every judicial decision in which they have been deployed in favor of the home team is questionable and should have an asterisk as footnote 9.

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Paladin
on April 23, 2020 at 12:30:10 pm

Paladin:
You may be interested in reading this Liberty Forum essay by Michael Greve and some of the responses:

https://lawliberty.org/forum/administrative-law-is-bunk-we-need-a-bundesverwaltungsgericht/

I think it hits the spot and rather than applying lipstick to the pig which will only sully it by bandying about in the mud and slop, Greve tosses some substantial pearls before the swine of the Admin state. Of course, these types can not be relied upon to tread carefully through the muck of Chevron / Auer and may prefer to feed at the trough of deference.

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gabe
on April 26, 2020 at 12:24:06 pm

Gabe, I finally got around to reading Professor Greve's proposal for an AdminLaw Court.
I am not opposed but strongly dubious, based on my administrative, district court and appellate litigation experience.

Hamburger's approach is probably the answer: just put all the "cases and controversies" in Article III courts where the constitution puts them. (BTW: Lots and lots more federal judges means that even you and I might possibly get appointed, get Borked and get rejected after our Kavenaugh-like confirmation hearings with fake accusers and fake Senators with their fake outrage:)

Generally I'm not a Greve fan. His most recent silly notion, which confirms my doubts, is that the Wuhan Virus Crisis might help restore the vibrancy of our moribund federalism. HaHa to all that! As they line for their bailout checks with Congressional strings attached, Blue States and Cities especially will cry, the beloved federalism.

And for devotees of federalism who consider self-flagellation as penitence I recommend struggling through Greve's 2012 often-impenetrable tome on federalism, "The Upside-down Constitution." Reading it was one of my most disappointing experiences with a book.
Also, check L&L's archive and re-read "The Bruce," Professor Greve's paean to Bruce Springsteen. Sophomoric!

Bottom line: I would verify before I would trust Professor Greve's opinion.

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Paladin
on April 27, 2020 at 15:46:31 pm

paladin:

Yep, we would get Borked and Forked over, as it were.
Greve, however, did allow for the viability of Art III courts and if i recall correctly, this may have been in response to a suggestion that I made in which i pointed out some deficiencies in the original court structure he proposed.
Mostly, though, what appealed to me, as 'burdensome as it could prove to be, was his suggestion for de novo review of all appellant case matters. with that approach, it seems to me that "deference' would then be automatically placed on shaky grounds as the Court itself would review and consider the Rules and statutes w/o the *benefit* of Agency formulation / interpretation.

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gabe
on April 27, 2020 at 19:03:54 pm

I have no problem in making ALJ's article III judges and trying cases in AdminLaw there. But i think the quality of the federal bench would be badly diluted by doing that. But that is not needed to solve the deference problem. The deference problem can be solved by not giving any deference to the federal agency on anything.
Greve would give deference at the trial level and try to mute the risk with de novo review at the appellate level. His rationale is that agency expertise should be deferred to. That is nonsensical; it makes no more sense in AdminLaw than in a criminal prosecution to defer to the soi-disant expertise of the US government, and it is grossly unfair (I think unconstitutional) to do so.

I prosecuted ALJ environmental civil cases for US EPA, and in my private practice later I defended against civil prosecutions in both ALJ hearings and in federal court. My expertise was identical in both cases, albeit in the latter I was far more experienced. Logically, the ALJ's should have deferred to me more in my private practice than it did when I represented EPA.

One other point: Greve says ALJ litigation is the basis for federal agencies to set policy. 'Taint so. Rule-making per APA and guidance memoranda, not fact-specific adjudications, are primarily how that is done.

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Paladin
on April 26, 2020 at 15:43:06 pm

And also read my extended April 1, 2020 reply to the L&L podcast with Professor Greve entitled, "Beyond the Roberts Court."

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Paladin
on April 23, 2020 at 12:43:13 pm

"While Roberts suggested that Congress would not want Chevron to apply to such major questions, the more persuasive basis of the decision is the nondelegation doctrine. Applied to major questions, Chevron, as originally decided, sustains a huge delegation of legislative power to the agency, permitting it to interpret a central element of a statute."

does this NOT disturb anyone else? What precisely is "major" How exactly does that matter to the poor appellant who is told that his loss of property (for example) is NOT major? The Little Sisters of the Poor are not a "major" factor / organization and the utilization (or lack thereof) of their meager resources in support of the aged poor can in no way be deemed to have a major effect upon commerce, overall charity efforts and even health care. Are their claims for justice to be relegated to the *expert* administration / interpretation of the Agencies? (Apparently they are to be so denied as their cases continue).

No, simply end it, i.e., "deference" the 20th / 21st century version of prerogative / dispensation (depending upon whom the agency favors).
I am partial to Michael Greve's approach which commends a system of Admin Law based upon the German Admin Court system.

see here:

https://lawliberty.org/forum/administrative-law-is-bunk-we-need-a-bundesverwaltungsgericht/

Also, read the responding essays (and comments). An interesting perspective / proposal for exiting this deferentail mess.

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gabe
on April 24, 2020 at 14:51:38 pm

Any discussion of Agency Deference(s) that doesn't consider and address Hamburger's assertion that it first and foremost, violates not only the Constitutional requirements that Judges/Justices MUST render independent and impartial decisions, but also very often, violates 5th Amendment due process protections, is incomplete. If he (Hamburger) is correct (and, I think he is), then there is no need to even get to the non-delegation doctrine. And, as I've said before, attorneys likewise bound to uphold the Constitution, on Hamburger's grounds, likewise should not even be raising deference in their briefs...I will now duck before I get my head knocked off...

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Paul C. Binotto
on April 24, 2020 at 15:57:22 pm

"I will now duck before I get my head knocked off..."

Make sure your mask does not fall off. You could be fined thousands of dollars.
Paul, how are you? Hope all is well. take care
Meestah Gabe

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gabe
on April 24, 2020 at 20:18:50 pm

Oh, that's right, I didn't think of that, Mr. Gabe - Ha! I'm doing good, thanks. Hope all is well with you, too. Stay safe and healthy.
-Paul

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Paul C. Binotto

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.