Chevron Skeptics? Depends on the President and the Courts

January 12th, 2016

The opening panel of the Federalist Society Faculty Conference was titled The New Chevron Skeptics. Here is a description of the panel:

When Chevron was first decided it was generally welcomed on the right side of the political spectrum as a principled method constraining judicial discretion and permitting the executive to exert policy control over the administrative state. But as the administrative state continues to grow, some now see Chevron as removing an important check on government power and an abdication of the judiciary’s authority to say what the law is. Some members of the Supreme Court are now open to reconsidering judicial deference to agency action, at least in certain areas, such as determining their own jurisdictions and interpreting their own regulations. The panel will consider the extent to which the new skepticism toward Chevron in particular and judicial deference to agencies in general is justified.

This timely discussion covered what seems to be a growing sentiment in conservative and libertarian circles that Chevron needs to be paired back. (I tend to agree with this). The Chief Justice’s dissent in City of Arlington, as well as his majority opinion in King v. Burwell suggests he is on board. Justice Thomas would reject our entire system of administrative law, so he’s on board. Justice Kennedy hinted at this in Gonzales v. Oregon. I’m not sure about Justice Alito. Justice Scalia is really the wild card, but I think he is slowly coming around on Chevron.

Kicking off the panel was John McGinnis who worked in the Solicitor General’s Office when Paul M. Bator argued Chevron. As John relayed the history of the case, Bator decided to frame the case as not merely one of statutory interpretation, but about the separation of powers and institutional competencies. For decades, the D.C. Circuit had been making up administrative law according to the whims of David Bazelon and his colleagues (only a slight exaggeration). They routinely disregarded the determinations of executive-branch agencies, and imposed arbitrary rules of how the regulatory state could operate. (As a side note, the Vermont Yankee nuclear plant has recently been replaced entirely by natural gas–Bazelon got the last laugh). The Reagan Justice Department was tired of this obstructionism, and wanted to get matters of regulatory affairs away from the “activist” courts. Chevron served this purpose. So long as the agency’s interpretation of an ambiguous statute was reasonable, the courts could not second-guess the agency’s judgment. From President Reagan’s perspective, with the liberal D.C. Circuit below him, that made a lot of sense.

Fast-forward to the present day. The Chevron Skeptics on the right argue that deference has gone too far, and the courts are letting the Obama Administration vastly exceed the bounds of its interpretive authority. For many conservative and libertarians, it would be more optimal for the Roberts Court to reign in executive excess than to give Sylvia Burwell or Jeh Johnson unbridled discretion.

But what happens if we are dealing with a Republican president in 2016. As the Reagan and Bush 41 judges slowly phase out, the Obama judiciary will predominate the lower courts–the D.C. Circuit in particular–for a generation. Will the skeptics be so skeptical if the courts do not defer to the conservative regulatory agenda? Although, in theory at least, the Supreme Could could facilitate error correction, they can’t catch them all.

Another hypothetical. What happens if we are dealing with a Democratic president in 2016. We will now have a liberal administration, whose regulations are being interpreted by Obama and Clinton (42 and 45)-appointed judges. For at least some time, the Supreme Court could serve as a form of error correction, but when Hillary Clinton makes between 1 and 4 nominations, that goes away.

And even if Congress remains in Republican control, and no major legislation is passed, the increasingly-attractive option of executive action can only be halted by the Courts.

I am not a fan of how far Chevron deference has been taken. I’ve written several briefs to that effect. However, I don’t quite know what this skepticism portends after 2016.