Chevron Deference: Kill And Overkill

There is no shortage of snarky retorts to the contention that the tripartite structure of government crafted by the framers has ceased to function as anticipated. It’s all because of the other side, as everyone knows, that Congress can’t manage to get anything right.

And because Congress, filled with people elected by constituencies who are wrong, except your own which did the right thing, is a wasteland, it’s left to the Executive branch to get done what needs to get done.

Chevron deference.

When bureaucrats created rules and regulations that furthered your preferred ends, you called it “law” and applauded the accomplishment. Except it wasn’t law. It was at best regulation, the “rule” invented by an unelected bureaucrat who presided over a fiefdom and who, with the touch of a keyboard, could craft policy that launched a thousand ships. 

When you liked the policy, this was great. When you didn’t like the policy, this was awful. When someone new came into power and, with the same keyboard, could undo, or change, that policy, it was outrageous. When you challenged the policy in federal court, a branch of government unto itself, you learned that the almighty legal system wasn’t nearly as powerful as you thought.

Chevron deference.

With two branches of government now in the hands of the same party, something that hasn’t happened for six years, there is a strong likelihood that laws will be enacted, changes made, in a rush to sate the expectations of their supporters and prove that they should remain in power come the midterm elections to continue to do whatever it is they’re expected to do.

Already the 115th Congress has been hard at work.

Chevron deference.

Section 706 of title 5, United States Code, as amended by this Act, is further amended—

(1) in subsection (a) (as designated by section 107 of this Act)—

(A) by striking “decide all relevant questions of law, interpret constitutional and statutory provisions, and”; and

(B) by inserting after “of the terms of an agency action” the following “and decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies. If the reviewing court determines that a statutory or regulatory provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an implicit delegation to the agency of legislative rule making authority and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section”; and

(2) by striking “The reviewing court shall—” and inserting the following:

“(b) The reviewing court shall—”.

This would be the end of Chevron deference. The legislation would require courts to “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.” This might seem fairly obvious to some, as this is what people think the courts’ job would be, but in 1984, the Supreme Court ruled in Chevron v. Natural Resources Defense Council that where a law’s implementation was left to an agency, and there was an ambiguity in the law as to how it should be applied to certain circumstances, the courts must defer to the agency’s expertise in its interpretation and implementation.

No more. Not if this law is enacted, as it appears will be the case.

The New York Times bemoans the impact of this loss of deference to administrative agencies.

Under the regulatory process, executive agencies write rules to carry out laws passed by Congress aimed at ensuring cleaner air and water, food safety and many other things vital to all Americans. The Republicans claim they want to reform the rule-making process to make regulators more accountable. But the practical effect of the bills, and their real intention, is to give Congress new power to repeal existing rules and block new ones. In essence, they would attack the protections in bedrock laws like the Clean Air Act, without directly attacking the laws — or incurring the public wrath that would come with a frontal assault.

There are serious issues at stake. Then again, there are always serious issues at stake.

The third bill, the Regulatory Accountability Act, is arguably the most dangerous of all because, as the most arcane, it is likeliest to fly under the public radar.

***

The bill would also assist industries when they sue to block major rules by requiring courts to delay the rules’ effective date, rather than letting judges decide whether to grant a stay. In what looks like bizarre overreach, it would invite judges to assert their views over the expertise of regulators.

There is virtue to a deliberative process. Thinking is hard, but it’s also good. But the new law, enacted quickly, ignores the admonition of Chesterton’s Fence, by removing the ability of judges to determine whether to stay the implementation of a regulation pending the outcome of litigation. It’s an oddity, giving judges de novo authority while simultaneously depriving them of authority to determine whether a stay is proper.

Some will snark that the courts suck, that judges are partisan hacks doing the bidding of their patron. That may be right in some instances, but what that reveals is that the system can be subverted when one sides tries to game it. Both sides engage in the same effort, each secure in the belief that when they do it, nominate judges who can be relied upon to rule the way they want them to rule, it’s for good rather than evil.

But if the system is to work, then it must be governed by laws that respect the tripartite structure of government. Circumventing those rules to achieve ends isn’t a solution to a government that’s dysfunctional. The solution is to make the government functional.

I’m no fan of Chevron deference. Much as I appreciate the Supreme Court’s purpose at the time, it’s since been undermined by regulatory abuse and congressional paralysis. It needs to be changed. But for the same reasons that bureaucrats rushing through regulations and guidance that suits their ends is wrong, so too is Congress rushing through a law that obliterates a system in effect for the past 30 years. Chevron deference needs to change, but wisely, not quickly.

22 thoughts on “Chevron Deference: Kill And Overkill

  1. B. McLeod

    Eliminating Chevron deference will simply enable more of the “judicial activism” this same crowd decries.

    1. SHG Post author

      It’s peculiar to argue that judges, whose job it is to judge the constitutionality of law, shouldn’t be authorized to judge the legality and constitutionality of regulations and guidance made by lesser officers. And yet, that’s Chevron deference.

      1. B. McLeod

        In my primary jurisdiction of practice, the courts overruled the state version of Chevron some years ago. Now, in numerous areas of special technical focus, judges whose clerks read a brief for 15 minutes overturn rules made by the “lesser officers” who only deal with the subject matter all day everyday. What could possibly go wrong? (Rhetorical).

        1. SHG Post author

          The end of Chevron deference doesn’t mean law clerks ruling on physics. As I suggested, I would prefer a rebuttable presumption rather than deference.

  2. Jeff Gamso

    If someone explains to the incoming that Chevron deference helps keep HIS agency guys’ rules effective, he might veto.

    After all, he’s the one who can fix things, not Congress.

    1. SHG Post author

      Ironic, right? In a few weeks, they’ll connect the dots and realize what this will mean for the next four years.

  3. Schmendrick

    A humble proposal: If Chevron goes so should hard look policy review as established by the State Farm case. Courts should decide questions of statutory interpretation, but agencies should get deference on the particulars of policy.

    1. SHG Post author

      Agencies should comply with the APA. Chevron deference should (if I was on the Court) be reduced to a rebuttable presumption, Auer deference should be eliminated entirely. Policy, per se, is beyond the purview of the court (political question) unless it’s beyond the implementing legislation, unlawful or unconstitutional, and then it’s as much subject to judicial review as any other governmental action. In other words, there should be no deference for any reason.

  4. Erik H.

    Chevron Schmevron. Moving on to newsworthy things, what did you think of what the pundits think of what Hillary thinks about Melania’s dress? We have a front page to fill here; don’t waste our time with important stuff.

    1. SHG Post author

      I had to google Melania’s dress. She looked nice. Hillary looked like Hillary. She probably would have preferred Melania in a pantsuit, but I didn’t find her saying that. Wait a sec, I see what you just made me do.

  5. DM f/k/a "Dwight Mann"

    “The solution is to make the government functional.” Such cockeyed optimism is why I keep coming back.

  6. Nigel Declan

    “But the practical effect of the bills, and their real intention, is to give Congress new power to repeal existing rules and block new ones.”

    Since Congress gives these agencies their power and defines the scope in which they operate, I’m pretty sure the elimination of Chevron deference would have no bearing on Congress’ ability to repeal and block rules, though I stand to be corrected on that point.

    1. SHG Post author

      You’re correct. The agencies putatively operate at the behest of Congress. What Congress giveth, Congress can taketh away, although agencies can issue “guidance” (not Chevron, but Auer deference) at the swipe of one bureaucrats pen, creating whatever havoc it might create, while Congress, even at its speediest, can’t undo the harm as quickly as a bureaucrat can inflict it.

      1. Nigel Declan

        So, then, does the New York Times not understand how laws work, or does it just not want the facts to get in the way of a good screed?

        1. SHG Post author

          An excellent question. Whoever wrote the editorial is the only person who can answer that question directly, but one would suspect that someone over there would know enough to recognize its sacrifice of honesty to pursue an agenda.

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