Written Briefs
Chevron Should Fall
Mark Chenoweth
Chevron v. Natural Resources Defense Council must be overturned to the extent that precedent requires judges to defer to agencies’ interpretations of federal statutes. Chevron’s demise is deserved for a wide range of reasons, but this brief will focus on the two main constitutional reasons why Chevron and its ilk must go—Article III and the Fifth Amendment. Because these constraints are constitutional in nature, no amount of statutory authorization by Congress, however clear, justifies ignoring them.
First, under Article III, judges have a constitutional duty to exercise their own independent judgment. The very office of a judge entails exercising independent judgment. To protect this internal commitment, the Constitution erects myriad defenses against external threats, including prohibiting religious tests, forbidding concurrent service in another branch, and barring salary reductions. So, when a judge defers to the executive branch’s typically self-interested interpretations of statutes, he abandons his personal duty as a judge to reach his own judgments and does an end run around constitutional safeguards to judicial independence. When all the judges jointly abdicate their judicial responsibility to interpret the law, they squander an essential foundation of freedom.
Nonetheless, Chevron commands federal judges to abandon their independent judgment and defer to an agency’s reasonable resolution of any statutory ambiguity that remains after applying standard statutory interpretive techniques. Even putting aside the problem that many judges do not do enough work to determine whether a statute is truly ambiguous, the Constitution does not permit judges to defer to agency interpretations of even genuine ambiguity. When they do that, they abandon their office and betray all that is entrusted to them.
Second, in addition to Article III’s command of independence, the Fifth Amendment compels judges to provide due process of law to litigants before them. Impartiality is the irreducible minimum of due process. Yet by deferring to the legal judgment of one of the parties in a case, the judges bend their judgment in its favor. For example, a judge does this when she accepts the government’s reasonable interpretation of an ambiguous provision over what she personally adjudges to be a better resolution of that ambiguity by a party opposing the government. This decision is not just deference, it is judicial bias that denies the due process of law.
Judges take an oath to “administer justice without respect to persons” and to “impartially discharge” their duties. But when jurists substitute the executive branch’s legal judgment for their own, they violate that oath. The fact that they do not do so out of personal favoritism or animus is irrelevant. Indeed, because they are substituting the executive’s judgment in every case of ambiguity, they are engaged in systematic bias denying due process far more often than they would if acting with occasional animus.
Even when an agency’s interpretation is reasonable and even when a statutory provision is ambiguous, the due process of law dictates that a judge be the one to interpret the law and provide an impartial decision. When a judge instead defers under Chevron to the government litigant’s legal interpretation, that denies due process to the non-governmental litigant. Such deference also allows the executive to act as a judge in its own cause—contradicting a cardinal rule of justice.
The fatal constitutional flaws inherent in Chevron (and other government litigant deference doctrines by extension) are not the most common objections, but they are the most important and ineluctable ones. And they are ones which no Supreme Court majority has ever addressed. That may soon change. It should. Forty years is far too long already to be without an independent judiciary.
Chevron Should Stand
Ronald M. Levin
Under Chevron, reviewing courts are to “reject administrative constructions which are contrary to clear congressional intent.” But if the statute does not contain a clear answer to the precise interpretive question at issue—in other words, is ambiguous—the reviewing court is expected to presume that the issue falls within the agency’s delegated authority. The doctrine adheres to that presumption for familiar and cogent reasons:
1) An agency tends to be experienced with the subject matter of the appeal, which may be quite specialized or complex. Generalist judges usually don’t have the same level of familiarity with the agency’s challenges..
2) An agency has the congressionally assigned responsibility to implement the regulatory program in order to achieve its goals. It needs flexibility to deal with emerging challenges that Congress may not have anticipated.
3) Agencies are politically accountable to the public for their interpretations of ambiguous statutory language. Unelected judges have no such accountability.
4) Because, under Chevron, administrative interpretations will usually be upheld, the doctrine promotes stability and predictability, which individuals and businesses need in order to arrange their own affairs.
At the same time, the Chevron framework, as courts actually implement it, leaves plenty of room for judicial supervision of the administrative process. The so-called step one review contemplates that courts may resort to all traditional tools of statutory interpretation as they consider whether the legislation at issue is, indeed, ambiguous in relation to the precise question that the challenger is raising. In practice, courts do frequently find what they consider to be clear answers to such questions. The second step of Chevron is interpreted to include consideration of whether the agency’s answer was not only reasonable, but also reasoned; all the techniques of modern hard look review can be deployed in this inquiry. Furthermore, courts have used the so-called “step zero” threshold inquiry to find that certain types of interpretations do not trigger Chevron review at all, such as informal interpretations that the agency has expressed in interpretive rules, advice letters, etc.
Chevron deference is not an abdication of the courts’ duty to say what the law is. Where Congress has authorized an agency to resolve a particular issue, judicial acceptance of the agency’s reasonable interpretation actually fulfills the legislature’s intention. More fundamentally, the doctrine does not interfere with independent judicial judgment, because it is a doctrinal framework that the Court has imposed on itself (and other courts).
Nor does history militate against the doctrine. The line of cases endorsing deference to administrative interpretations extends back to the earliest days of judicial review. The drafters of the APA were aware of this tradition, and the legislative record shows that they did not intend to disturb it.
Over time, the Court has continually refined the Chevron analysis in order to balance agency and judicial responsibilities. The doctrine has evolved into a flexible, workable framework that courts are accustomed to applying. The Court should not lightly abandon it.
Oral Arguments
Amicus Briefs
Chevron and Stare Decisis
The Supreme Court should not overrule Chevron largely due to the doctrine of statutory stare decisis. Chevron deference is a bedrock precedent in administrative law, relied on by the Supreme Court and the lower federal courts thousands of times since Chevron was decided in 1984. Congress, federal agencies, and the regulated public have also structured their affairs around the precedent. Conversely, the constitutional arguments against Chevron are unpersuasive, and the debate about the original understanding of judicial deference in the Administrative Procedure Act is murky at best. The pull of stare decisis, therefore, should be at its greatest with respect to this statutory precedent.
Chevron deference, moreover, advances important rule-of-law values in administrative law. Aside from the conventional values of agency expertise, enhanced deliberative process, and more politically accountable policymaking, empirical scholarship sheds light on two less-appreciated values: more national uniformity and predictability in federal law and less politics in judicial decisionmaking. Finally, the Supreme Court’s recent approach to Chevron has already addressed the concerns raised about the precedent—i.e., through more searching inquiries at Chevron steps one and two and the introduction of the major questions doctrine.
For a fuller layout of these arguments, check out my co-authored article (with Kent Barnett) titled “Chevron and Stare Decisis,” a draft of which is available here: http://ssrn.com/abstract=4595773.
Prof. Christopher Walker is a Professor of Law at the University of Michigan School of Law
It’s Time to Inter Chevron Deference
The Supreme Court has not invoked Chevron deference in more than six years—despite hearing several cases implicating the doctrine. Instead, the justices have used the tools of statutory construction to wring every last drop of meaning from statutory text and avoid finding ambiguities in the first place. The rise of the major questions doctrine, which some consider a Chevron carve-out, has contributed to Chevron’s slow death at the Supreme Court. But in the lower courts, Chevron is alive and well.
Just consider the opinions in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, concerning the National Marine Fisheries Service’s attempt to require commercial herring fishermen to pay the salary of a federal observer on their vessels. The federal statute from which the Service derived this purported authority mandates industry to pay for monitoring in three circumstances, none of which are present in Loper Bright and Relentless. Nevertheless, the lower courts both found the Service’s interpretation was reasonable and entitled to deference in light of the statute’s silence on the matter.
Courts are supposed to exercise independent judgment on the meaning of the law. Chevron, however, forces judges to forego performing this essential check on government power. The Supreme Court has been asked to overturn Chevron or clarify that statutory silence concerning controversial powers does not constitute an ambiguity requiring deference to the government. If Chevron is dead on arrival, the justices must give it “a tombstone no one can miss.”
Elizabeth Slattery is the Director of Constitutional Scholarship at Pacific Legal Foundation.
Chevron is Inevitable
Chevron should stand. As Kristin Hickman and I argue, Chevron (or something like it) is inevitable in a world where Congress authorizes agencies to decide what technologies are “best,” “safe,” or “reasonable.” Sometimes, judges can use interpretive tools to delineate the boundaries of these terms. Often, however, the search for meaning necessitates a policy determination about what activities are desired or acceptable. Agencies—not courts—have greater expertise and democratic legitimacy to resolve competing policy interests. These policy decisions risk injecting politics into judicial decision-making. Empirical research shows that Chevron reduces partisan effects in judicial decision-making relative to other standards of review.
Those advocating for Chevron’s demise fail to propose a compelling alternative. De novo review does not provide a tool with which to dispense with policy questions. Neither de novo review nor Skidmore insulate judicial decision-making from partisan effects as well as Chevron. Moreover, critics fail to recognize that most cases invoking Chevron involve mundane policy decisions. In the typical post-Chevron case, courts will avoid policy questions by simply deploying statutory tools that allow them to reach the same conclusion as the agency. Ultimately, critics are concerned with the sliver of “major” questions where agencies appear to have exceeded their statutory authority. If reforms are necessary to prevent executive overreach, courts can implement these reforms within the confines of Chevron’s preexisting framework. The Supreme Court may demand a more taxing inquiry at Step One or constrain Chevron's scope. In the end, Chevron is just a standard of review. Its demise will not end deference; it will just make deference less transparent.
Prof. Nicholas Bednar is an Associate Professor of Law at the University of Minnesota Law School
Final Thoughts
I appreciate all of the interest in overturning Chevron. Those who have followed this debate should now turn their attention to January 17 when the Relentless v. Department of Commerce and Loper Bright v. Raimondo cases will be argued at the U.S. Supreme Court. I trust that Roman Martinez and Paul Clement will enjoy greater success convincing their audience that day. Meanwhile, you may wish to check out the landing page for the Relentless case at NCLA’s website, where among other things you will find numerous amicus briefs that were submitted to the Supreme Court on Nov. 27 in support of overturning Chevron. https://nclalegal.org/relentless-inc-et-al-v-u-s-dept-of-commerce-et-al/
Four years ago, when Kisor v. Wilkie was pending before the Supreme Court, it was widely believed that the Court would use the case as a vehicle for abandoning Auer deference – the principle that courts should defer, within limits, to agencies’ interpretations of their own regulations. That prediction proved mistaken: Auer survived, with modest modifications. This outcome depended – at least for the Chief Justice – on the importance of stare decisis.
In the forthcoming Loper Bright and Relentless decisions, history might repeat itself. The doom of Chevron has long been predicted, but it might not occur. Indeed, the pull of stare decisis is arguably stronger in these cases than it was in Kisor.
Of course, the case for Chevron does not rest on precedent alone. As my earlier contributions to this debate explained, the doctrine derives from a longstanding tradition of respect for the insights that administrators can bring to the interpretation of ambiguous statutes. At the same time, the doctrine incorporates a significant supervisory role for the courts, in order to ensure that they won’t follow interpretations that are extravagant or poorly reasoned. The outcome of the Briefcase poll is encouraging; we’ll see if the Supreme Court agrees.
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