The Mistakes of Chevron and a Separation of Powers Fallacy

In my previous post, I talked about how delegation came to dominate our government.  I focused on two types of delegation – delegation of policymaking discretion and delegation of legal interpretation, such as Chevron deference.

I suggested that Chevron was a disaster, because it greatly added to the delegations that had already occurred though congressional statutes.  The courts could have simply enforced those congressional delegations without adding to them with Chevron.  But instead they invented Chevron – which had not been enacted by Congress – and greatly expanded the delegations.

Chevron was also a disaster in another way.  One might believe that Republicans are generally more in favor of limited government than Democrats these days, especially as to government regulation.  This is not an uncontroversial judgment, but I believe it is largely correct.  And if that is so, then the Republican judges of the 1980s undermined their cause when they pushed Chevron.  Chevron allowed administrative agencies significantly more authority to enact regulations. 

Prior to Chevron, the courts basically employed one of two tests for agency deference.  Some of the time they granted deference as to mixed questions of law and fact, but denied deference as to pure questions of law.  At other times, they employed a multi-factored balancing test as to whether the agency should get deference, which was exceedingly unpredictable.  Chevron represented a big transfer of authority to agencies as compared to either of these tests.

So why did the Republican judges of the 1980s invent Chevron?  In my view, there were two main reasons.  First, there was the concern that the multi-factored balancing test was not clear and allowed judicial manipulation.  True enough, although the modern evolution of Chevron has allowed such manipulation as well.  But the Republican judges could have simply, with more precedential support, followed the first test granting deference as to mixed questions, but not as to pure questions.  That would have yielded a test with pretty clear results.

This leads to the second reason – the Republican judges believed that liberal judicial activism was a greater danger than abuse by administrative agencies (agencies which tended to be controlled by Republicans during this period).  The problem with the second reason is that it commits a serious fallacy in the separation of powers: the fallacy of assuming that the present arrangement (of which political party controls the different branches) will continue into the future.  These arrangements can last for a considerable period, but over time they change.

The arrangement that prompted Chevron soon changed.  The Democrats came to control the agencies and the Republicans assumed control of the judiciary.  Since the different branches can be controlled by either party, the best way to determine which powers makes sense for a branch to hold is ask the question from a long run perspective without considering which party happens to control that branch at the moment.

Under this way of deciding the matter, there is a strong argument against Chevron deference.  Chevron might be viewed either as the delegation of legislative power or judicial power to the agency.  Either way, it is problematic. The basic issue is that an agency that can exercise both executive and judicial power or both executive and legislative power is problematic.  By departing from the separation of powers (especially without a legislative warrant for doing so), Chevron gives the executive tremendous power to engage in largely unchecked actions.

It is true that the Republicans were concerned about a real issue as well – liberal judicial activism.  But it would have been better to address that directly – by changing the statute or gradually appointing new judges.  Over time, the judges would have changed, as they did.  Under Chevron, however, the put in place a rule of deference that would allow the abuse of executive power for a long period.

Reader Discussion

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on October 20, 2016 at 15:18:11 pm

Very interesting. In addition to the existing balances of power (Republican Executive/Agency control, Democratic Judiciary) when Chevron came to be, can it also be said that Congress was less apt, and the Republican judges were less apt to predict/expect Congress, to delegate such a great deal of their legislative burden (through ambiguousness, vagueness in statutes) to the agencies, (as they (Congress) presently do); or was Congress comparatively delegating to agencies when Chevron was adopted?

Thank you.

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Paul Binotto
on October 20, 2016 at 15:22:26 pm

Well said again, I have come to the same conclusions. A lot of the modern chevron doctrine I believe can be traced back to Scalia (first on the DC Circuit then when he was on the Supreme Court). The modern conservative legal movement was born in opposition to the Warren Court's judicial activism. The idea of judges going "too far" and assuming for themselves to change the meaning of the statutes/constitution. So it was natural for conservatives (and Scalia in particular) to distrust the unelected judiciary in favor of the Reagan administration's agencies. This didn't work so well when Clinton and Obama were the President, and I think a lot of people on the right are seeing the problems this doctrine has created from a rule of law perspective.

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Devin Watkins
on October 20, 2016 at 15:54:54 pm

Second the comments AND the sentiment. Nice essay by Rappaport.

Statement: His argument would seem to offer further evidence that a "one-size-fits-all" judicial posture toward legitimacy of legislative outputs is mistaken. I suspect a) you may agree with this, b) a similar argument may be advanced by reversing the "activism - deference" response timelines, i.e., when too deferential, some may argue it is time to *get active* (indeed, is that not the basic predicate of Wilsonian governance and it's judicial adherents), and c) to what extent may it be said that "engagement" is also a response to either activism or deference?

Question: To your mind, what ought to be the proper perspective / determinations of an "engaged" jurist when confronting Chevron, and / or agency deference in general?

(BTW: any update on article you mentioned? Rainy season has begun and I will have much time to read, Ha!)

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on October 20, 2016 at 22:21:28 pm

I am of the opinion that Chevron is invalid (congress never actually intended to delegate the power, and even if they did it would probably be unconstitutional for separation of powers reasons). But I don't think engagement really speaks to it much. If the rule is valid then deference should be given in those cases, but where deference isn't given then the judge should evaluate for themselves the evidence. An engaged jurist might be more skeptical of chevron, after all it is the judge's role to say what the law is.

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Devin Watkins
on October 20, 2016 at 22:23:52 pm

As to the article, I will be published next week on this site. It's very interesting, in my humble opinion, challenging some of the conservative notions of substantive due process, and while rejecting Roe v. Wade (and especially its prodigy), proposes a kind of originalist middle ground on abortion. Should be interesting to see what people think of the idea.

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Devin Watkins
on December 24, 2016 at 11:25:09 am

Pretty! This was an extremely wonderful article.
Many thanks for providing these details.

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Thunder Rock

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.