Not since the New Deal era has the scope and reach of the modern administrative state received so much public attention. It is thus unsurprising that the first Supreme Court case mentioned by Senator Diane Feinstein on the first day of Judge Neil Gorsuch’s confirmation hearings did not involve familiar hot-button issues like gun control, abortion, or campaign finance. That case was Chevron USA, Inc. v. National Resources Defense Council, Inc., a 1984 decision associated with a doctrine that requires judges to defer to federal agencies’ interpretations of statutes that they are charged with administering.
Judge Gorsuch has been a persistent critic of “Chevron deference,” and conservatives have generally commended him for it. Yet there is no little irony in the fact that the Justice whose seat he may fill was Chevron’s greatest champion. Legal scholars have shown that Chevron was not initially regarded as a landmark decision—that it only later became understood to require judges to fundamentally transform their approach to judicial review of agency interpretations of statutes. And no one did more to entrench that transformative understanding of Chevron than Justice Scalia.
So now seems as good a time as any to explain why Justice Scalia was wrong about the merits of Chevron deference.
Why did Scalia champion Chevron deference? In an influential 1989 article, then-Judge Scalia defended Chevron deference on the grounds that “broad delegation to the Executive is a hallmark of the modern administrative state” and that Chevron deference provides a dependable “background rule of law against which Congress can legislate.” Scalia believed that Congress generally wants agencies to exercise discretion and that Chevron deference ensures that legislators “do not have to gamble upon whether, if they say nothing about it in the statute, the ultimate answer [to an interpretive question] will be provided by the courts or rather by the Department of Labor.” Chevron deference appealed to Scalia’s majoritarianism and his preference for clear rules.
Yet the Congress that enacted the Administrative Procedure Act of 1946 (APA) plainly did not want judges to defer to agency interpretations of law. As Scalia would later acknowledge (and Professor Aditya Bamzai has shown), Section 706 of the APA, which requires courts to “decide all relevant questions of law” is best understood as requiring independent judicial review, without deference to agencies. The APA was not an utter capitulation to the rise of administrative agencies that routinely exercise consolidated legislative, executive, and judicial power that the Constitution deliberately and carefully separates. It was the product of a hard-fought compromise between New Dealers with undiluted faith in government-by-experts and Republicans and conservative Democrats who sought to curb what Dean Roscoe Pound described as emergent “administrative absolutism.” Reserving to the judiciary the authority to independently interpret the law while providing for judicial deference to agency fact-finding was an essential part of that compromise. The APA enacted into statutory law a division of labor that the courts had worked out over the course of the previous several decades and which had been formalized in the Supreme Court’s 1932 decision Crowell v. Benson. Chevron deference utterly undoes that compromise.
More fundamentally, Chevron deference prevents judges from discharging their constitutional duty. In his seminal opinion for the Court in the 1803 case of Marbury v. Madison. Chief Justice John Marshall affirmed that it is the constitutional duty of the judiciary to “say what the law is” without regard to what the political branches think it is. The judicial duty to exercise independent judgment, without deference to the will of the political branches, can be traced back through centuries of Anglo-American jurisprudence and entered into our Constitution through Article III’s authorization of “[t]he judicial power.” The Framers knew that the political branches could not be trusted to act as the sole judges of the limits of their own powers—that is why Article III provides for a structurally independent system of courts, staffed by judges with a duty to exercise intellectually independent judgment, to “guard the Constitution and the rights of individuals.” Chevron deference thus requires judges to abdicate their constitutional duty and prevents the judiciary from performing its constitutional function.
Further, in cases between government officials and members of the public that involve “life, liberty, or property,” Chevron deference requires judges to violate the Fifth Amendment’s guarantee of “due process of law.” Due process of law entails, among other things, impartial adjudication, free from bias towards either party. Chevron deference actually requires judges to favor the legal position held by the most powerful of parties—the government. As Professor Philip Hamburger has explained, the fact this bias is systematic rather than individual—the product of adherence to Court-fashioned doctrine rather than the product of a particular judge’s proclivities—makes it more troubling, not only because it makes that bias more certain but because it undermines the legitimacy of the institution of which judges are a part.
In view of its departures from the Constitution and from the APA, it is no surprise that Chevron deference has abated the rise (and rise) of a federal regulatory apparatus which cannot plausibly be squared with the “few and defined” powers enumerated in the Constitution or with the APA’s system of surrogate safeguards against the arbitrary exercise of administrative power. It is encouraging that even those who revere Justice Scalia’s jurisprudence have departed from his assessment of a profoundly pernicious doctrine. The sooner the Court ends its failed Chevron experiment, the better.