The Future of Chevron Deference

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Administrative Law & Regulation Practice Group, the Article I Initiative, and the Regulatory Transparency Project was recorded on Thursday, September 13, 2018 during a live teleforum conference call held exclusively for Federalist Society members.          

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is "The Future of Chevron Deference" and is hosted by our Administrative Law & Regulation Practice Group, the Article I Initiative, and the Regulatory Transparency Project. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are very fortunate to have with us an accomplished panel of experts and moderating them today is Professor Jennifer Mascott, who is an Assistant Professor of Law at the Antonin Scalia Law School at George Mason University. On our panel today is Professor Christopher Walker, who is an Associate Professor of Law at The Ohio State University, and Adam White, who is the Director for the Center for the Study of the Administrative State at Scalia Law School and a Research Fellow at the Hoover Institution.

 

      After our speakers give their remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for this subject or for one of our speakers in particular. Thank you all for speaking with us. Professor Mascott, I believe the floor is yours.

 

Prof. Jennifer L. Mascott:  Yes. Well, thank you all for joining us today for this teleforum on the future of Chevron deference. And to get us started, I thought I would just briefly summarize what the Chevron doctrine is understood to be, and that's just the idea that if a statute gives an agency authority and the statute is ambiguous, Chevron deference would suggest that courts should defer to agencies' interpretation of that ambiguous statute and uphold the agencies' interpretation as long as it's reasonable. The Chevron opinion was written by Justice Stevens but over the years, some would say it was actually Justice Scalia and other members of the Court who more formalized Chevron deference as a doctrine, an interpretive doctrine, that's applied to statutes.

 

      That said, over the years, critics of Chevron deference have arisen and have raised the point that as the federal government regulates and passes more statutes, sometimes statutes that are quite broad that already don’t necessarily give specific guidance to agencies, the idea that courts would then further defer to agencies and give them more room to interpret even those broad statues and give deference can raise problems and make powerful actors even more powerful.

 

      So I'd be interested today in getting our experts' responses to those critiques. Are those critiques valid or does Chevron deference have an important role to play in our system? And Professor Walker starting with you, you've referred to a Chevron deference dilemma. I want to get your thoughts on what you mean by that and where you think the Supreme Court is headed with Chevron deference with the addition of Justice Gorsuch to the Court last year.

 

Prof. Christopher Walker:  Great. So it's great to be on this call and talk more about Chevron deference, which has been in the news for a long time, and it's not going anywhere, I think, in our debates and policy and legal circles. I just kind of wanted to start off with one thought, which I've kind of more provocatively stated as The Federalist Society's Chevron deference dilemma, not -- obviously The Federalist Society itself does not take any positions on legal issues, but within The Federalist Society you do have a divergence, and I think an important one, on the future of Chevron deference and other types of deference doctrines to the political branches.

     

      And so as Jen was mentioning, in recent years there's been a call to eliminate or at least narrow Chevron deference, and that call has come largely from those right of center. And whether that's on the Hill through legislation and scholarship or by a number of judges, most prominently perhaps Justice Gorsuch as that centered in his confirmation last year, but also Justice Thomas and Judge Kavanaugh and other lower court judges. And somewhat surprising to me having clerked for Justice Kennedy, one of his final parting messages on the Court in Pereira this last term in a concurrence was to join Gorsuch and Thomas in suggesting that there are constitutional problems with Chevron deference and that at least its application has to be rethought.

 

      But I go back to this dilemma and I want to kind of just frame it in a sense of within right of center circles, there is a deep divide with respect to the role of federal courts in our constitutional republic. Some view courts as a critical safeguard to liberty and thus encourage them to actively engage. You might think of those as perhaps Randy Barnett and Philip Hamburger and the Academy. Others, which I would consider kind of be more traditional judicial conservatives and perhaps most libertarian, would view federal courts as playing a more limited role. Because they're not democratically accountable, they should exercise judicial restraint. People that come to mind might be Mike Paulsen and Adrian Vermeule if you're looking for a few on that front.

 

      And so within Federalist Society circles and elsewhere, we've been debating the role of federal courts for a long time, and Chevron deference is kind of front and center on that. And, in fact, the Chevron court itself back in 1984 grounded the deference doctrine, in part, on trying to reserve political or policy judgments for the more politically accountable branches of government and not to courts. And so you see this in the Chevron opinion where it says, "You know, what? An agency to which Congress has delegated policymaker responsibilities may within its limits of delegation properly rely upon the incumbent administration's views of wise policy to inform its judgments." And the Chevron court goes on to say, "While agencies are not directly accountable to the people, the chief executive is. It's entirely appropriate for the political branch of the government to make such policy decisions.

 

      And that really is your kind of classic conservative -- judicial conservative approach to judicial review. 1984, this is the Reagan administration. It was a deregulatory effort. And so in other words, Chevron deference strives to remove politics for judicial decision-making, and for at least some within The Federalist Society, that's an important goal. And I say this in part—and we'll get to talking about Judge Kavanaugh's approach in a little bit—but I say that in part because over the last, you know, five, six, years, Kent Barnett, Christina Boyd, and I have been studying Chevron deference in the circuit courts. We looked at like 11 years of data and over 1,500 different decisions where Chevron was implicated. And we have a new paper coming out in the Vanderbilt Law Review where we take a look at this question of does Chevron deference actually rein in partisanship and judicial decision-making? And our answer is that while there is still some partisanship as you would expect, Chevron deference actually has a really powerful constraining effect on judicial decision-making. And I can talk more about the finesse of the study, but basically the idea is that if what we care about is judges not acting politically but judges being judges, Chevron deference is one way, one really powerful tool, that courts have in order to kind of shed some of their political inclinations.

 

      Now, a couple responses. One, if you go to the Law & Liberty blog and Google Philip Hamburger and Chevron bias, when this came out he was not too excited about that, and he would say that all this is doing is biasing decision-making towards the government and away from the everyday person. But, I mean, you do see this kind of debate when we're talking about the future of Chevron deference. There may be other reasons why we want to get rid of it, and we can talk about those. But if one of our core objectives is to not have partisan judicial decision-making, it may be wise to not move too quickly in the direction of abandoning it. So I think I'll stop there and let Adam tell me why I'm wrong or go off in a different direction.

 

Prof. Jennifer L. Mascott:  Yeah, thanks, Chris. Adam, how about you? Are the critiques justified or is there value in Chevron deference continuing?

 

Adam White:  Thanks, Jen. Thanks, Chris. Actually, Chris, I'm far from disagreeing with your study. I found it very interesting, very enlightening. I've cited it recently in some congressional testimony. I thought it, as all of your work with Boyd and Barnett on these issues, I think it's a must-read. And so I really congratulate you on it.

 

      I want to pick up on actually something you said along the way. You pointed out the sort of historic -- the origins of Chevron deference during the Reagan administration. An opinion written by Stevens but then really defended I think most effectively by Scalia, and I'll get back to him in a minute.

 

      You know, the historic irony was that for so long, Chevron's critics were found mostly on the ideological left, right? Either criticizing it outright or the ones most eager to trim it and to create exceptions and limitations. It was really a critique coming not from the Court's conservatives. It was coming from Breyer and Souter and even Stevens himself at times. And they really were critiques aimed at elevating technical expertise and protecting it from political influence even though democratic accountability really was one of the underpinnings of Chevron. And now to see a new critique in the last five years or so, maybe a little more than that, coming especially from the right, both on the Court and in academia, and focus not on promoting technical expertise, really promoting rule-of-law value as a whole separate criticism of Chevron. I think it's fascinating, and I sometimes worry that focus on the current criticism—both focus from the right and the left on the conservatives' criticism—really hides the decades of criticism that Chevron had from the left.

 

      Now, where does Kavanaugh fit into all of this? All of us have spent so much time in the last several months debating, talking about Kavanaugh, reading his opinions, and so on. And of course given his time on the D.C. Circuit, Chevron deference really comes to the fore. And Kavanaugh recognizes that there are problems inherent with Chevron, and he really makes his point well in his review of Judge Katzmann's book on statutory interpretation. I think it was his Harvard Law Review article where Kavanaugh says one of the real dangers of Chevron deference is that it asks judges to draw lines that aren't clear at all. What's an ambiguous statute? What's an unambiguous statute? It's no easy line to draw, and there's the risk that judges will just be asserting their own political will or value choices in drawing those lines. And then when you add to that, the Chevron Step Zero, is this the kind of interpretation that belongs in the Chevron framework at all? That's another line that needs to be drawn that I think Kavanaugh would say is not clear at all.

 

      But aside from that criticism, he has, I think, faithfully applied the Supreme Court's evermore nuanced approach to Chevron. And we've seen this in cases, especially his opinion on the net neutrality case, his opinion in one of the earlier climate change cases, Coalition for Responsible Regulation, the one that wound up in the Supreme Court as Utility Air Regulatory Group, and we've seen it in another interesting case, Loving v. IRS. What we've seen, I think especially with Kavanaugh, is his use of the major questions doctrine, or the major, I think he called it the major rules doctrine, but this idea that when an agency is asserting powers, immense new powers that are suddenly and blatantly discovered in a long-standing statute, the courts ought to be a little skeptical on this. And Kavanaugh has applied this at Chevron Step Zero in deciding whether to apply Chevron at all. We saw that in his net neutrality opinions. We've seen him apply it in Step One of Chevron in just deciding whether the statute is unambiguous or phrased a little differently, deciding whether Congress had a specific intent on the issues. We saw that in his greenhouse gas opinion in Coalition for Responsible Regulation. And also, I think in Loving v. IRS it's a little bit more muddled of an opinion or he doesn't really draw define fine lines between Chevron Step One and Two, but I think there, too, you see him apply the major questions doctrine at Chevron Step One.

     

      So he's applying Chevron, but he's doing so in line with cases or doctrines where the Supreme Court itself has limited Chevron, whether it was King v. Burwell, the Obamacare subsidies case where Chief Justice Roberts along with Ginsburg, Breyer, Sotomayor, and Kennedy and Kagan said we're not going to apply Chevron at all in reviewing this agency interpretation because the issue is just too big, too central to the statute. Or with cases like Brown & Williamson, the classic tobacco case, where basically the Court applied a major questions doctrine at what looked like Chevron Step One, or Utility Air Regulatory Group, where the Court was applying major questions doctrine at Chevron Step Two, we've seen Kavanaugh try to implement this.

 

      And one other important thread in all of this, Kavanaugh in some of his writing has echoed Scalia's statement in 1989 in his Duke Law Journal article—Scalia's Duke Law Journal article—that as a textualist, Scalia said "I'm more likely to resolve cases at Chevron Step One than many of my peers would be in." Kavanaugh has said the same in some of his writings, that he's more comfortable deciding these issues at Chevron Step One just reading the statute himself and not moving on the deferential Step Two. So in that way, you see some similarities with Scalia. In other ways, some contrast with Scala. And the same 1989 article, Scalia said that the real virtue of the Chevron framework was that it was so simple, so transparent. It really signaled to Congress how the courts would act in subsequent cases. I mean, Kavanaugh's main critique of Chevron is actually that it's not nearly so transparent and predictable and so easily administered.

 

      But the real difference I think I want to spotlight here in my time remaining is the difference between Kavanaugh and Justice Gorsuch. Gorsuch is a lot like Justice Thomas in that his criticism of Chevron really goes down all the way to first principles and Philip Hamburger's critique and the idea that deference implicates real questions of judicial abdication of the judges own constitutional duties. I've not seeing Kavanaugh ever go that far. I've seen Kavanaugh work within the Chevron framework, especially in the areas I just outlined, where he's following Supreme Court decisions reigning Chevron in. But I've never seen him go so far—I call it the full Hamburger or the full Gorsuch, the full Thomas—in bringing this all the way back to questions about whether Chevron is inherently unconstitutional and illegitimate.

 

      Kavanaugh, like Scalia, instead really brings this all back to Congress. Kavanaugh had a really great exchange with I think Senator Graham in his confirmation hearing where he stressed that for him administrative law ultimately comes down to Congress: what did Congress direct the agencies to do, what did it empower them to do, how much discretion does it leave them? And the same with courts. When Congress writes these statutes, what does Congress want the courts to do? And I think on the whole, I'm a little agnostic on Chevron, but I think on the whole, this is probably a good approach, thinking about this first and foremost in terms of Congress and Congress's exercise of its own constitutional powers.

 

      Like I said, I'm agnostic on Chevron, but increasingly I find myself not pro-Chevron but anti anti-Chevron, so to speak, where I think that some of the current critiques of Chevron, though all in good faith -- and I think critiques are advanced in good reason with concerns about the judges not taking their judicial work seriously enough, being too instinctively deferential. That's all important to keep in mind, and I think there's a lot of truth in that critique. But so far I've not seen anybody really rebut Justice Scalia's approach to Chevron in 1989 where he said Chevron if done correctly, especially with a rigorous Step One where you really interpret the law for yourself and where Congress hasn't had a precise intent on the issue but rather has just sketched out some, you might say, intelligible principles for the agency to follow, the best thing the courts can do is leave some space for agency discretion in making law and policy.

 

      And for that matter, I haven't seen critics really explain how their approach in getting rid of Chevron deference altogether would avoid the problems that gave rise to Chevron in the first place: judicial micromanagement of agencies—agencies that are properly exercising broad powers that are given to them by Congress. Maybe the only thing worse than Chevron might be the lack of Chevron, where instead of the EPA implementing these statutes you have Judge Skelly Wright and Judge Bazelon on the D.C. Circuit acting, asserting themselves as the nation's de facto environmental regulators. And so I think the criticism of Chevron really needs to focus in that direction and explain how the world would really work. The real world we live in, how it would actually work under the statutes that Congress has passed for the last century, the day after Chevron is revealed.

 

      And the last thing I'd say is focusing on Congress. This really is a place where Congress needs to act. Congress needs to legislate a clearer standard. I don't think Section 706 of the APA is clear on this. I think if Congress has an intention one way or another, they ought to make it clear in the statute. And furthermore, I think Congress ought to think much more seriously about tying different levels of deference to the different procedural vehicles that agencies use. And I can elaborate on that if we'd like. But so far I think that's really my main points.

 

Prof. Jennifer L. Mascott:  So, Adam, I have a question on something that you said earlier on in your remarks. You mentioned that early on it seemed like attacks on Chevron were coming from the left and now they seem to be coming more from the right, and what is your thought on what has caused the position on Chevron deference perhaps to change and the interest on that to align differently now. For example, why -- because now, you know, especially if we're listening to commentary, a lot of the times scholars who might identify as more progressive or liberal or pro-agency behavior would seem to suggest in a lot of instances that Chevron deference needs to be protected and needs to be given. Why would that position shift? Why is Chevron deference now seen as more of an important progressive or liberal value than perhaps it was in the past?

 

Adam White:  Well, I don’t want to sort of armchair or psychoanalyze anybody on the left or right. I don’t think these positions are strictly partisan. If they were, we would've seen the roles reverse, not in the last eight years, but we would've seen it in the '90s when the Clinton administration began to administer these statutes in the Chevron era instead of Reagan and Bush. We would've seen a flip-flop then. We didn't see it.

 

      I think in some ways the recent change in positions owes to the magnitude and novelty of the regulatory programs we saw in the last ten years: net neutrality, greenhouse gas regulations and so on. That I think in a way, just the sheer breadth and novelty of those regulatory programs and the prospects of judicial deference to those agencies' interpretations of the law I think helped animate a lot of the modern critique of Chevron, and also animate a lot of the modern defense of Chevron. And also, I think it's a generational shift. You know, I think it's less a question of people themselves flip-flopping and I think it's more sort of new generations on the left and the right looking at these doctrines through new lenses. And so that's I think the main difference.

     

      One last thing, and I mentioned this also in some recent congressional testimony, is with Chevron I think one of the risks, especially among scholars, is that it's much easier for scholars to imagine themselves, by and large, in the position of the regulators versus the regulated, right? It's much easier to imagine going from a faculty position to a senior role in an agency, right, and thinking about the interests of the agency, much more so than I think it is easy to imagine going from being a faculty member to suddenly finding yourself dealing with the backend of your property being classified as a wetland so to speak. And so I think there is that sort of inherent bias. Maybe the scholars who are more critical of Chevron have just temperamentally or whatever -- see themselves less through the lens of the regulator and more through the lens of the regulated, but who knows?

 

Prof. Jennifer L. Mascott:  Thanks, Adam --

 

[CROSSTALK]

 

Prof. Christopher Walker:  That sounds pretty -- oh, sorry. Can I jump in there, too, Jen?

 

Prof. Jennifer L. Mascott:  Oh, sure.

 

Prof. Christopher Walker: That's some pretty good psychoanalyzing at the end there. Well, I do want to say I think that -- I mean, getting back to one of Adam's first comments in his opening, I think we're seeing a shift in part because we're seeing a shift of law making from legislation to regulation, right?

 

Adam White:  Yeah.

 

Prof. Christopher Walker:  I don't think it's just the end of the Obama administration that got conservatives up in arms, although I think that helped. It's that Congress isn't acting. President Obama had to get more aggressive to get his agenda through the administrative process because it wasn't going anywhere and the legislative process. And we're at a point now where Congress just isn't legislating, isn't trying to address the major questions that face our society, and so it's left to agencies. And I think one of the interesting things in watching the Kavanaugh hearing is I'm understanding better now that when we're pro-Chevron if it's a progressive, it's pro-agency Chevron, not pro-presidential Chevron, right?

 

Adam White:  Right.

 

Prof. Christopher Walker:  At least right now. It's not political accountability that we're talking about; it's we trust these agencies as experts with mission inertia to do what we think is going to be more progressive—you know, the conservative case or the progressive case for Chevron. And we know that Congress isn't going to do anything. Most of the areas where we have our big fights about Chevron are statutes that haven't really been substantially amended since the '70s by Congress. And so I think that's really part of it, right, for the federal government to continue to make these judgments of important values. Congress isn't a place where you're going to get that done; federal agencies are. So I think that's part of why Chevron is still being defended on that front.

 

Adam White:  Jen, can I --

 

Prof. Jennifer L. Mascott:  Chris, I wanted to ask you about something you had mentioned, Chris, earlier in your remarks. You had, in passing, said that -- mentioned that your former boss, Justice Kennedy, and how one of the final opinions that he had written before announcing his retirement was to raise some constitutional critiques of Chevron and that you found that surprising, and I wanted to give you a chance to explain that. And then also tell us a little bit more about your study that both you and Adam have referenced in your remarks and just what kind of findings about Chevron deference you learned from doing your study with Professors Barnett and Boyd?

 

Prof. Christopher Walker:  Yeah. So at the end of the term in an immigration case, Pereira v. Sessions, and it's a really fun case for Chevron, although -- so the majority says the statute's unambiguous, which is kind of the kind of Gorsuch/Kavanaugh move where I think they are similar, and it's a Scalia in the sense that in Step One they're going to kind of squeeze all the ambiguity they possibly can to get out of Step One, right, using all the textual tools and the structure and the like to try to narrow it to get rid of the ambiguity. I think that's one case where you see that, right? And you have Justice Alito in the dissent saying, "Wait a minute, what about Chevron, like the interpretation? There's clearly two different interpretations here. We should defer to the agency."

 

      But Justice Kennedy wrote a concurrence, and it's very short, in which he stakes his ground and says, "You know, what I'm seeing is I don't like this" what he calls "'reflexive deference' in Chevron deference. I don't like how it's been applied in the lower courts; I don't like how we're not doing our job," and when he says that, he cites to the Thomas Michigan v. EPA concurrence where he sets forth his views of the unconstitutionality of Chevron deference, relying on Philip Hamburger and others, and also then-Judge Gorsuch's Tenth Circuit concurrence in Brizuela where he also kind of sets forth similar concerns. And so you see Justice Kennedy's final word on Chevron at the Supreme Court is saying, "You know what? I think I'm more uneasy about this." He doesn't quite come out and say, "We've got get rid of it." He says, "We need it in the appropriate case reconsider it."

 

      And maybe that's because if you look at it in the, shifting to the study that Kent and Christie and I have done, if you look at Chevron in the circuit courts over this kind of 11-year period that we were looking at it, it really, truly makes a difference. Agencies are winning under Chevron about -- when Chevron is applied, they're winning about 75 percent of the time. When Chevron is not applied, when the court refuses to apply Chevron, it plummets a whole 25 percentage points. And so you're seeing this big difference. And that's just in the circuit courts. If there's a narrowing of Chevron or its outright elimination, you're going to see agencies act differently in how they regulate. And we can talk about a different study I did about five years ago on that and how agencies will be more conservative or more faithful or cautious with its statutory mandates. And, of course, you'll also see litigants become more aggressive if they think there's a better chance they can win in court.

 

      And so I think when Justice Kennedy's referring to his concerns about reflexive deference, he really is concerned about are the lower courts really doing their job here? Are they taking a really close look at the statute and trying to decide if there really is an ambiguity that Congress intended for the agency to be the primary mover on.

 

Prof. Jennifer L. Mascott:  And did your study give you any enlightenment on whether lower courts were doing their job despite Chevron deference being in the background? What did you find when you all looked at how lower courts are handling Chevron deference and that whole analysis?

 

Prof. Christopher Walker:  Yeah, so we didn't try to code 27.25 for, like, did the agency -- did we think the agency got it wrong or right. So Kent Barnett and I, we did -- so Christie's our stats, political-science pro that helped us run, but Kent and I read and coded all 1,500, actually 2,000 cases.

 

Prof. Jennifer L. Mascott:  Wow.

 

Prof. Christopher Walker:  And we have very different takes on whether an agency gets something right or wrong, so it's kind of hard -- we didn’t try to code for that. We just coded more did the agency win or not. Was Chevron applied or not; if not, what did they apply? --

 

Prof. Jennifer L. Mascott:  Well, and I didn't mean to --

 

Prof. Christopher Walker:  -- And so I don't have, like -- I'm sorry, what?

 

Prof. Jennifer L. Mascott:  I was just going to say I didn't mean to ask whether they were substantively right or wrong, but I didn't know if your study, and maybe this would be too hard to pick up, but was able to pick up at all how much consideration they had given, or how many tools of interpretation they had used before heading to Chevron deference. Like is there any way to pick that up in an imperial study? Or whether the court's just automatically saying, "You know, this is an agency determination and so we're going to do this all through the lens of Chevron." Or were they doing more of the Justice Scalia-style Step One? And I don't know, Adam, maybe you have thoughts on what you've seen in lower court opinions that you've studied. I'm happy for you to jump in on any of this as well.

 

Prof. Christopher Walker:  I guess I'll just answer quickly on that. We did code for tools that were used, and we did a deeper dive and like recoded for all the Step Two cases because we were kind of curious to see what does Step Two mean. But I might kind of -- it didn't for Step One, we just didn't -- there wasn't a lot of illumination there, you know, once we had all the data. My sense is it just varies dramatically on how courts approach that. I mean, some questions I think were easy answers where they just say Chevron applies and they don’t really provide much, and others they kind of engage in a little bit more search and analysis of Step One. And that might be variant based on the judge's interpretive methodology. It could vary based on how easy or hard the question is. I think it would be hard for us to really gather too much on that front.

 

      I will say, though, one of the fascinating things, at least I thought it was fun, is to see the vast differences among the circuit courts, like the D.C. Circuit, for instance, almost always applies Chevron deference, like 90 percent of the time, and then the agencies win or lose under Chevron. Whereas the Sixth Circuit seldom applies Chevron deference, but when they do apply Chevron deference, the agency almost always wins.

 

Prof. Jennifer L. Mascott:  That is an interesting observation.

 

Prof. Christopher Walker:  And so there're kind of fascinating dynamics across circuits that are kind of fun.

 

Adam White:  You know, I think --

 

Prof. Jennifer L. Mascott:  Adam, are you going to jump in?

 

Adam White:  I was just going to say about Chris's study and how granular to make it, it would be ironic if we moved from adding steps to Chevron to adding steps to Chevron studies. That would be fitting.

 

      Just two quick observations, and I want to, just really quick, to leap frog back to Chris's point about what's changed about Chevron. It reminded me that we also need to keep in mind that Chevron really tried to strike a balance between three things, right? Democracy and expertise and the rule of law. And I think in our own culture and politics, we've seen those three themes diverge so much in the way that our political actors and the people see, that it's not surprising that Chevron has come under increasing strain where people who, I think, see these three fundamental values in increasing tension with one another.

 

      But Chris's last point, again, Chris's big, big study on Chevron in the circuits and the way they broke out data, both circuit-specific data and also agency-specific data, which is very, very important and anybody who's clerked on a court that hears agency cases knows that some agencies are held reputationally in higher regard than others when it comes to the quality of their legal work. I think it's so important, but it raises another thing that Congress can do.

 

      I said earlier that Congress -- one thing Congress ought to do is just re-legislate the standard of review in 706. And also things Congress can do structurally in terms of the way it routes different kinds of cases to different courts. That venue selection in and of itself ends up having significant substantive effects in the outcomes as Chris has shown. And I think if Congress -- and those routing certain cases to certain courts may have made more sense 40 years ago when we had less telecommunications; we had less easy travel and so on. But now I think is the time for Congress to think seriously about reforming some of these venue statutes. And maybe if administrative law cases were put out to a more diversified portfolio of courts, so to speak, and if there was less predictability upfront about which circuit court was going to hear these cases, that might itself have significant impacts on the ways that agencies go about their business with an eye to Chevron deference at the end.

 

Prof. Jennifer L. Mascott:  So I want to get both of your takes on, like, the teleforum's title "The Future of Chevron Deference" where you all have seen the Court headed over the past couple of years and whether there have been changes. But before we do since both of you seem to be taking at least a relatively pro-Chevron approach or seem to be talking about its value, I wanted to ask maybe more of a cynical question, particularly following up on something, Adam, you had said.

 

      Adam, you said maybe Congress needs to step in and legislate more clearly if it wants the deference standard changed in Chevron and wants courts to be more in charge of answering legal questions. But just to read the language that we're working from in the APA, so APA Section 706(2)(c) basically says, "The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." So would there be an argument there that -- I mean, that's pretty clear if an agency's acting outside of its statutory jurisdiction, authority, or limits then that action needs to be found unlawful. And how much clearer would Congress need to be, and what are you proposing maybe that Congress say in future legislation to give really clear instructions to courts that's not already said in the APA now?

 

Adam White:  Right. And also in 706, and I'd say in addition to the language you identified, the preamble to 706 where it says, "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions," and that, too, I think is something that Chevron's critics tend to point to and it really is worth pointing to. What did Congress mean when they say the court shall interpret statutory provisions? I'd say Chevron at its best actually does comply with that, not just Scalia's version of Chevron where you have a textually rigorous Step One, but in Chevron itself. Let me bring it up here—I have a tab open on my computer. Footnote nine of the majorities opinion, the Court goes out of its way to say, "the Judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear, congressional intent," and then they go on to say, "employing the traditional tools of statutory construction.

 

      So it's often -- critics of Chevron often say, "Well, Chevron never even cited 706." Well, it's true they didn't use the citation, but they reiterated the point that people are citing to. This all, then, I think then comes down to how we understand what it was that Congress did in those statutes. What is the law of those statutes? And the way I tend to look at it is Congress's law was one that just vested agencies with significant discretion. Not totally open-ended discretion; that would raise real problems under the non-delegation doctrine. But I think the courts do need to respect, and Chevron's critics do need to respect the nature of these statutes. That itself was something Scalia pointed to in this Duke Law Journal article—I keep coming back and forth over and over again—he said, at this moment in time, 1989, the best presumption, looking at the stock of statutes that Congress has actually legislated for the past half-century really is one that leaves significant discretion to the agencies.

 

      Now, if Congress wanted to change that and the House has passed legislation that would insert the words 'de novo' into that Section 706 that say "interpret de novo". That obviously would get rid of Chevron deference. And if that's the way that Congress wants to go, then that's how we do it. Or if Congress wanted to remove Chevron deference from specific vehicles -- something I've proposed elsewhere is to get rid of Chevron deference for interpretations arising from agency adjudications. You know, in order to funnel more policymaking into the rulemaking process rather than agency adjudication, just make it de novo review of interpretations that arise from agency adjudication. And that gives agencies a choice, a significant choice, at the frontend of the process. Are we going to go through the rulemaking process, and ideally a much more formal rulemaking process, that would then give agencies some measure of Chevron deference at the backend, which is a very powerful incentive for all the reasons Chris has studied? Or are we just going to do this the fast way through agency adjudication and then deal with de novo review on the backend? I think that really is the best thing Congress could do.

 

Prof. Jennifer L. Mascott:  Chris, I wanted --

 

[CROSSTALK]

 

Prof. Jennifer L. Mascott:  Yeah, go ahead, please.

 

Prof. Christopher Walker:  So I think, one, Adam's idea of Congress being more specific, I mean, Kent Burnett has a great paper on how Congress actually strips Chevron deference in Dodd-Frank for the OCC with respect to preemption decisions. So you could also imagine the agency losing Chevron deference if Congress had decided that they're not performing well. So not just losing it from adjudication, but actually agency-by-agency specific would be kind of fascinating.

 

      The other thing on the APA, what I think we're now calling "APA originalism," there's a great new paper by Cass Sunstein that makes -- actually embraces APA originalism and comes out a way I think similar to what Adam's suggesting. I'd love to have that debate between Sunstein and Aditya Bamzai at UVA, who had a paper a few years back that had kind of a contrary conclusion about the original kind of public meaning of the Administrative Procedure Act. And so I think that's something that would be really kind of fascinating.

 

      I kind of want to say one last point. We've talked about -- you know, I feel like Jen's right. We are kind of being a little too pro-Chevron here because we focused on points that are pro-Chevron, but I do feel, one—they're kind of my two core critiques that come out of the Gorsuch/Thomas line—and one we've already talked a lot of about as kind of your Article III critique, your kind of Marbury v. Madison, are they saying what the law is or are they giving up that duty?

 

      But the other one is the Article I critique, right? It's a little bit muddier for me, this idea that somehow Chevron is violating non-delegation principles because it's encouraging Congress to over-delegate. But I think one important point with that is that I think a lot of folks that are skeptical or nervous about Chevron deference would be less so if Congress were actually legislating, right? If they're actually revisiting what agencies were doing, modifying organic statutes that agencies are administering in light of that regulatory activity. I, for one, would definitely be in that camp. I think Chevron would be a much more functioning tool if there actually were a three-branch dialogue about what our laws should be.

 

Prof. Jennifer L. Mascott:  Thanks for those points. Do you all see the Court having done things to change the way in which Chevron deference has been applied over the years? Where is the Court headed? Does the Court seem to be with the advent of Justice Gorsuch to the bench and Justice Thomas writing more about Chevron and more about administrative agencies in general, is the Court becoming more skeptical over time? Have there been changes? Where do you see Chevron deference headed in the future?

 

Adam White:  Well, I'll take this. I think that the best prediction of where the future is headed is the recent past. The increase in skepticism of the Court across the board has manifested again in King v. Burwell, where it was Chief Justice Roberts and Kennedy and the Court's liberal justices, not the conservatives, who were saying, "We're not going to grant any -- we're not going to apply Chevron at all to an issue of such central importance to the statutory scheme," especially when the agency in question was the IRS, which wasn't a healthcare agency. You know, I think that's probably, in the short term, where we're going to see this play out.

 

      If we hadn't had a change of political affiliation of the presidential administration, if Hillary Clinton had one instead of Donald Trump, I think that the net neutrality litigation would itself would’ve been the follow-up case to help elaborate exactly how that standard was going to work at Chevron Step Zero. That's exactly what Kavanaugh tried to do in his opinion dissenting from the denial over hearing en banc. And so I think that's going to continue.

 

      At the same time, I think that the Thomas/Gorsuch sort of first principles/rule of law criticism of Chevron will probably have a real gravitational pull on the broader Court as its dealing with these Chevron Step Zero questions. It's hard for me to imagine the Thomas/Gorsuch/Hamburger critique getting five justices in the short term, although it's quite possible, I suppose, but I don’t think it's very likely. But I do think that that will continue to serve as ballast, or whatever metaphor you want, a gravitational pull on how the Court as a whole is thinking about these issues.

 

Prof. Jennifer L. Mascott:  And Chris, I'll look to you to weigh in. Where do you see the Court headed?

 

Prof. Christopher Walker:  Yeah, I think Adam's hit it on the head. I think there are five votes already on the Court for the Chief Justice's kind of more context-specific approach to Chevron deference. As Adam was saying, I think you see that in King v. Burwell and his dissent in City of Arlington where he wants to say, "We're not just going to -- it's not enough, like, we're not going to go with this bright-line rule anymore that Justice Scalia had that Congress gave rulemaking or adjudicative authority. The agency used it; therefore, Chevron deference." You see the Chief really wanting to ask, "Well, do we really think that particular ambiguity is one that Congress meant to delegate?" So whether it's about a scope of authority or a major question or an ambiguity for which the agency has zero expertise, I think you're going to see the Supreme Court continue to chip away at Chevron in those instances.

 

      And then I guess the other one we already saw this last term in Pereira and in the Wisconsin Limited case, where they're kind of, I think in some ways, lowering the threshold, or raising the threshold at Step One of saying, "We're just going to say statutes are unambiguous more easily." And I think in some ways, although I don’t think they're reacting to it, but one thing about Judge Kavanaugh I just loved: his Harvard Law Review book review of Judge Katzmann's book. He grapples with this a lot, this idea of how do judges deal with ambiguity, and he makes this kind of cool point, not just about Chevron, but other tools that hinge on ambiguity where he says, "You know, some judges they require 90 percent certainty that something is unambiguous to say it's unambiguous. Whereas other judges like me are probably more around 60 percent. And if I'm 60 percent sure it's unambiguous, I'm going to go ahead and say it's unambiguous and kind of move on." And I think you're going to see the Court, especially -- that's something that Thomas and Gorsuch seem to embrace and the Chief to some extent, and Alito, I think you're going to see that kind of move at Step One as well.

 

      So you've got a Step Zero move—context specific, is this ambiguity one we really should be delegating that we think Congress intended to delegate, which also has Breyer there kind of interested in that. And then a Step One move of using all the tools of statutory interpretation and not asking "Are we 100 percent sure, but is it clear enough?" as Justice Gorsuch said in the Wisconsin case.

 

Adam White:  Yeah. I'll just jump in. Even Scalia, it's been said, lost faith with Chevron near the end. He believed in its simplicity, and thus its predictability. And as Chevron became evermore esoteric and he had fewer and fewer allies -- Ron Cass has a piece out in the last year called "Administrative Law in Nino's Wake," where he relates just his own personal story from being friends with Justice Scalia; that Scalia was beginning to back away from Chevron. Quite frankly, I was hearing those stories both before he passed away and then after he passed away from people who knew him or who saw him speak at events, where he was saying that maybe it was time to fix the Chevron problem. And once you take away Chevron's, what Scalia saw as its simplicity and its predictability, you're suddenly grappling with a much different set of possible options for how to reform it.

 

Prof. Jennifer L. Mascott:  So to follow up on a couple of things that you all have said, Chris, one of the understandings that I hear your study to be making, or conclusions that you seem to draw from your study, is this idea that Chevron, when it's applied, does seem to be constraining. And maybe we see judges -- well, we would think their political leanings might be evident less when they're applying Chevron deference than when they're applying no deference at all. But if one of the ways in which Chevron deference is going to possibly be constrained, or its application changed over the years, is this Step Zero, which means as you were saying the Chief Justice is saying there might be some major questions where we shouldn't reach Chevron deference because we wouldn’t think Congress would mean to delegate this. Do we lose the constraint or the virtue of Chevron when we're in that question at Step Zero, or does the Court seem to have put forward bright-line principles that should also govern the Step Zero analysis?

 

Prof. Christopher Walker:  Yeah, that's a great question. And I think if I were the Chief Justice -- and he had some competing values here because right now, based on our study and approach, study done by Bill Eskridge and Lauren Baer at the Supreme Court on which our study was modeled, you see two different pictures. The Supreme Court historically, I think even more so now, doesn't really rigidly apply Chevron deference. They kind of just decide cases in the Supreme Court when it's convenient or not. Whereas the circuit courts, at least as a general matter, Chevron has a very, very constraining role.

 

      And so if you're the Chief Justice, on the one hand you might have problems with Chevron, constitutional matters or just some matter of, like, policy. On the other hand, if what you care about is uniformity among the lower courts and kind of controlling the development of the lot at the Supreme Court level, if you brought in Step Zero, make it easier for courts not to apply Chevron and thus strike down agency statutory interpretations, you're going to really disrupt uniformity in the law in ways that could be problematic. Whereas conversely, right now they've got a pretty good setup. The Supreme Court does. They can let the law remain uniform and let it develop at the lower courts in a more uniform fashion because of Chevron. And if they ever disagree with that in a particular case or on a particularly important issue, they can grant cert, ignore Chevron and decide the issue, right, like they did in King v. Burwell and some of these others.

 

      But if you get rid of Chevron, you're going to have more divergence of circuit splits and confusion among the lower courts on these issues, and if you're a chief justice you might care about that. Maybe you should, maybe you shouldn't. But if one of your goals is uniformity in the law and having the Supreme Court be kind of the final player, the current version of Chevron kind of allows you to have your cake and eat it too.

 

Prof. Jennifer L. Mascott:  Adam, did you have anything to add?

 

Adam White:  No. I think that was well put.

 

Prof. Jennifer L. Mascott:  Well, great. Well, thank you both for laying out all the issues with Chevron and where the Court seems to be headed. I'd like to leave time for the audience if there're any questions to jump in.

 

Wesley Hodges:  Of course. Well, let's go ahead and open the floor for questions then. It does look we have four questions out of the gate, so let's go ahead and move to our first caller.

 

Caller 1:  Hello. Unfortunately, I'm not familiar with the piece or your work on the subject of partisanship and judicial decision-making as it applies to Chevron deference, but I'm just curious as to how you actually measured partisanship? I just find that, unfortunately, it seems to be invoked frequently when the distinction is more proper judging versus getting the office or policy.

 

Prof. Jennifer L. Mascott:  So it sounds like this question is for Chris. Chris, can you -- I think I made an allusion to your study suggesting that when judges are not applying Chevron deference, your study seems to suggest that there's more divergence than in terms of whether the agency's acted properly within its authority, and maybe that's an avenue for political preferences to come in. Would you summarize for us on what basis your study reaches that conclusion and just what you found about what judges were doing when they weren't applying Chevron?

 

Prof. Christopher Walker:  Sure. Sure. So the article -- it's forthcoming in the Vanderbilt Law Review. It's called "Administrative Law as Political Dynamics," and it's on SSRN. If you Google it, you'll be able to kind of read it in more detail. But the methodology is pretty straightforward. To determine the ideology of the judge, we're using the JCS scores that have been developed in political science. So it's not just who nominated -- what was the party affiliation the President nominates. It's more complex than that. And then on agency front to decide whether it’s a liberal or conservative's interpretation, we applied the Eskridge and Baer framework and that's in the paper set forth.

 

      And in the paper we're careful. I mean, you do see that partisanship still plays a role, you know, that judges are still more likely to uphold one that kind of fits. But it plays a much, much lesser role than you would imagine. And kind of one quick point on that, there've been some prior studies by Cass Sunstein and others and Cross and Tiller for instance, that have found under Chevron that you have panel effects. So if you have a uniformly liberal, uniformly conservative panel, they were going to be more likely to uphold a liberal or conservative interpretation more inline with their political views. But if you added one member of the minority of the other party onto the panel, it would even it out and kind of remove the politics. And we didn't find any of that. We found nothing statistically significant on panel effects. And I think in large part, it's because we have Chevron doing that work itself, that it's anchoring the court in a more kind of pro-agency and less political manner.

 

Prof. Jennifer L. Mascott:  Well, before we move to the next question, Chris, what would be your response, though, to the Professor Hamburger critique? I think you're saying we see less political preferences come into play with Chevron deference, but then you mentioned Professor Hamburger's critique is "but we're always still seeing a pro-government bias." I mean, what is your thought on that? Is Chevron too pro-government?

 

Prof. Christopher Walker:  I think it's another -- they're separate inquiries, right? I mean, we're looking at judicial partisanship. I don't think it's an illegitimate response to say, "Well, at the end of the day, that just means the government wins more." And its gets kind of back to my opening, right, of this Chevron deference dilemma among The Federalist Society. You know, do we want judges to kind of be more actively involved in fighting back the political branches or not? And Hamburger's clearly on one side. I'm not necessarily on the other, but I do think that that's a separate question.

 

Prof. Jennifer L. Mascott:  Great. Our second caller, the floor is yours.

 

Caller 2:  Actually a follow up to the question that she just asked is, you know, instead of the Democrat/Republican, liberal/conservative, which is kind of Democrat/Republican right now, but the bias seems to be—I agree with Professor Hamburger, I guess—the bias seems to be pro-government, right? It's pro-government intervention, and whether it's an intervention in a way the Republicans like it or whether it's intervention in the way Democrats like it, the bias seems to be pro-intervention. And I was wondering what your survey and paper found out about that. It seems to me whenever Chevron is used, it's like, okay, yeah, whatever the agency says; as long as it means that the agency can regulate, than it's ok. But if there's a decision that no, we don’t have the power to do anything here, then the courts step in, particularly in the environmental world, et cetera. "Oh, well, yeah. The agency, you have to get in here and regulate." And I was just wondering what your -- to elaborate a little bit on that.

 

Prof. Christopher Walker:  Yeah, I mean, I think that's a nice way to articulate kind of Hamburger position. I mean, I would somewhat kind of resist the narrative that Chevron is a pro-regulation doctrine. I think that it also facilitates—the Chevron decision itself—the deregulatory actions, you know, being able to take a step back and the agency removing itself from it. But we have seen it more recently, at least in the Obama administration, as more of a pro-regulatory matter. And I think that's true. I mean, our study didn't try to capture whether it was pro- or anti-regulatory. But just the common sense is if the agency's winning, then at least they're winning. I mean, I agree with you on that that it's biased in that sense. I hate to use the word bias, but it is definitely pro-agency. And for some of us, we might view that as pro-political branches because the President does have influence and so does Congress on how agencies act, unless the Judicial Branch, you know, being the one that's making these policy decisions.

 

Adam White:  Jen, could I add something on that?

 

Prof. Jennifer L. Mascott:  Oh, please. Yes.

 

Adam White:  At the very least, I want to first sort of reiterate Chris's point -- and this came up some during the Chevron hearings too, or the Kavanaugh hearings, which from time to time were Chevron hearings, that Chevron is pro-regulatory and that to reform Chevron is somehow anti-regulatory or deregulatory. I mean, that's just not -- in most ways not true, right? Courts under Chevron give equal deference to the agencies that are reforming or repealing regulations. We're going to see that -- if Chevron stays in place, we'll see a lot of that in the next two years as the things coming out of the administration right now make their way into court. It was the whole point as Chris said in 1984 during the Reagan administration.

 

      And when we talk about Chevron bias, I mean, I do agree with Philip Hamburger that a structure of judicial review that gives the benefit of the doubt to agencies versus those suing the agencies, it is a form of bias. At the same time, we have that in other areas of administrative law—arbitrary and capricious review and so on. Congress specifies standards of review sometimes that are quite generous to the agencies. So what I think it really is Chevron's bias is actually a bias towards Congress. It's a bias towards Congress writing statutes that do leave a lot of discretion to be wielded by the agencies. Kavanaugh sees that, Scalia sees that, and so on. The alternative is a framework in which the courts decide that when a statute is ambiguous, either the courts themselves will fix the statutes one and only one operative meaning, or the courts will strike down the laws as unconstitutional delegations of legislative power. That would be an immense shift of power away from the political branches of government and towards the courts over top of not just the agencies, but again over top of Congress itself. It's a huge shift in the other direction.

 

Prof. Jennifer L. Mascott:  Well, thank you, both. I think we have a third caller who'd like to ask a question. And I should've said this before, but if you can state your name and affiliation and if there's a particular person your question is directed towards, that would be great. So the floor is yours.

 

Eric Litman (sp):  Hi, this is Eric Litman of the State of Minnesota. I wanted to thank Professors Walker and White and Mascott for a very kind and interesting discussion. I wanted to touch upon one of the side issues that both Professor Walker and White addressed in their remarks, namely that a key part of the solution if you were interested in a smaller, regulatory footprint in the U.S. is to get Congress to narrow the delegations. And I'm wondering if they might play out that idea of the kinds of circumstances that would be required—political circumstances—to be required in order to get Congress to be properly incentivized to do that.

 

      One familiar problem is that with the broad delegation starting out if there were a constituency, imagine a tea party on regulations that said we'd like to narrow let's say the Clean Water Act, that the rejoinder inevitably would be "Oh, you're going to break the entire system of complicated regulations that have built up over 40 years." And so it inspires inertia and not so much of reform. So I'm asking as a practical matter, does it require groups like AEI or the Heritage Foundation or the CATO Institute to try to develop these ideas I guess in the non-profit sector before shipping -- and road-testing them before shipping them up to Congress? Or if it's not that way, how does one approach a deregulatory agenda in their view? And I'll take my answer off the air. Thanks.

 

Prof. Christopher Walker: So I'd just, real quickly, and it's a little bit off -- related, but off the topic of the teleforum, but Jonathan Adler and I are writing a paper right now for one of Adam's great center conferences in the spring in which we kind of -- we're going to float one idea for addressing non-delegation, which is to encourage Congress to resume the process of reauthorization, whether that be through harsher penalties like sunsetting or softer penalties. But the idea that Congress doesn't just do regular appropriations for agencies, but also needs to engage in a regular reauthorization process like they did back in the day but haven't really done for many statutes, except like the Farm Bill in recent years.

 

Adam White:  Chris, how do you have time for all these teleforums? Aren't you supposed to be writing that paper?

 

Prof. Christopher Walker:  I am. [Laughter]. That's what John was asking right now too.

 

Adam White:  No, I'm looking forward to the paper. I'd say that something else worth keeping in mind, and it's what actually Professor Adler has written on elsewhere, is the REINS Act and the Congressional Review Act and other ways in which Congress can across the board sort of structurally reform delegations of regulatory power to agencies. With the REINS Act in particular, you're taking -- you're un-delegating power to regulate -- to impose the costliest regulations across the board reforms.

 

      I'd say is something else to keep in mind in all of this is the states, right? We've been talking about Chevron deference and we talked about it all in terms of how it works at the federal level, and the fact is state courts are grappling with how to reform their own versions of Chevron deference. I think the State of Arizona just enacted a law getting rid of its version of Chevron deference. And so all of this sort of speculation that people like me and Chris and others have in how things could play out at the federal level, I think an important improvement upon that discussion is seeing how things actually do play out at the state level.

 

      And of course, states are different, the statutes are different, the courts are different, the magnitude of the regulatory programs is different. But I really am curious to see what happens in the state level, both in reforming judicial deference and also in efforts to reform regulatory statutes either across the board or on an issue-specific basis. I increasingly think that in the long run, the only thing that's going to break the law jam on Congress where you see some bipartisan interest, especially among Senator Heidi Heitkamp, who's collaborating with Senators Lankford and Portman and others on these sorts of issues, but I think actually may be able to point to the demonstrated real-world impacts of state reforms could help improve this debate and point a way towards federal reform.

 

Prof. Jennifer L. Mascott:  Great. Well, thank you so much. I think we are at an hour. But I really appreciate Professor White, all of your insight and Professor Walker as well in telling us about your study. So thank you both for your time. Thank you to our audience, and I hope everybody has a great rest of the day and join us next time.

 

Wesley Hodges:  Thank you all for joining the call. On behalf of The Federalist Society, I'd like to thank our experts for the benefit of their valuable time and expertise today. We welcome all listener feedback by email at [email protected]. Thank you all for joining. This call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.