Administrative Law and the Courts

In recent years, Chevron deference has come under attack by academics, by judges, and on the Hill. For instance, pending in congress is the separation of powers restoration act. Which would eliminate Chevron deference, and tell courts they need to review De Novo, without any deference, agency interpretations of law. You also see a number of federal judges criticizing Chevron deference. Most notably Justice Gorsuch at his confirmation hearing, Chevron deference was front and center. Because as a judge on the 10th Circuit Court of Appeals, had raised constitutional concerns about Chevron. Justice Thomas has raised constitutional concerns about Chevron. And most recently Justice Kennedy has raised constitutional concerns about Chevron. So, what are these Constitutional concerns? What's going on? What's wrong with Chevron? Why should we get rid of it? I think before we get to the constitutional concerns, we should return to the Administrative Procedure Act. The Administrative Procedure Act commands courts to determine questions of law and the constitution. There's nothing in the Administrative Procedure Act itself, in the text, that says the court should defer to agencies. Now, there's historical debates about whether deference doctrines were codified, backdrop principles of common law were codified. But the text itself doesn't say anything about deference. And that's an important fact when we're determining what to do with a deference doctrine. Now, when we're looking at the Constitutional concerns, they kind of come in two main flavors. The first is that there's an Article Three concern under the Constitutional Chevron deference. As Justice Thomas has explained, under Marbury vs. Madison, it's the duty of courts to say what the law is. Chevron deference by contrast says that it's the agency's primary authority to say what the law is. In other words, even if the court thinks an agency's interpretation is the not the best interpretation, the right interpretation of a statute. The court still has to defer, so long as it's reasonable. So, that could raise some article three judicial concerns about Chevron. The other types of concerns that Justice Gorsuch has explored, are the Article One concerns, the nondelegation concerns. In other words, Chevron deference may encourage congress to delegate too much lawmaking power to federal agencies. And that creates problems of non-delegation, because Congress isn't playing it's proper role to legislate. And agencies are playing too much of a role. And so, when you combine these two constitutional concerns, with the fact that Administrative Procedure Act says nothing about deference, Chevron deference, you might have an opportunity here to eliminate to doctrine.