Chevron and Auer undermine the rule of law.
In my earlier post, I discussed how the Supreme Court’s failure to enforce the nondelegation doctrine has allowed legislative and executive power to be combined. Here I want to discuss another way in which the Supreme Court has not merely allowed legislative and executive power to be combined, but has actually encouraged the process; and done so probably against Congress’s will.
Under the Chevron doctrine, the Courts permit administrative agencies to adopt any reasonable interpretation of a statute that the agency administers. (This is a simpler formulation than the Court normally gives, but it is accurate and will do for this post.) The doctrine provides the agencies of the executive branch with more power over the implementation of the laws than they would otherwise have. The agencies are given authority to choose any reasonable interpretation of the statute that they desire. Thus, more policymaking discretion is given to the agencies. The agencies therefore enjoy more legislative power in that they get to decide the meaning of the legislation that Congress enacted. (Another way to view the doctrine is that it confers judicial power on the agencies. While I don’t pursue that view here, that is hardly better.)
Significantly, the Chevron doctrine is not a command of the Congress. The Court has largely made the whole thing up, so that agencies receive more of a delegation than Congress appears to have intended. If the Congress had actually delegated the authority to the agencies, then the Court could at least claim to be following Congress’s will. (For those who doubt my claim that Congress did not delegate this power, see my next post.)
Happily, the Supreme Court has been willing to cut back a bit on Chevron deference in recent years. The Christenson-Mead doctrine has held that the agencies are normally entitled to Chevron deference when exercising informal rulemaking and formal adjudication, but not when exercising many types of agency action. Unfortunately, this doctrine has introduced significant uncertainty into the law.
Justice Scalia has been the strongest advocate of Chevron deference on the Court. Unfortunately, his position is extremely problematic, both generally and from the textualist perspective that the Justice so often champions. I will explain why in my next post on the subject.