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Chevron Deference Is a Case of Too Much Judicial Restraint
The precedent strips judges and lawmakers of legitimate power and hands it to bureaucrats.
The Wall Street Journal
By David B. Rivkin Jr. and Andrew M. Grossman
January 16, 2024
Conservatives
often criticize liberal jurists for “judicial activism”—disregarding
laws passed by elected legislators and imposing their own policy
preferences instead. On Wednesday the Supreme Court will consider
whether to overturn a precedent that went too far in the other direction
by surrendering the judicial role of interpreting the law and handing
it to unelected bureaucrats and agency heads.
Loper Bright Enterprises v. Raimondo is
a case about fishing regulation. The National Marine Fisheries Service
issued a rule requiring the plaintiffs to pay the costs of carrying
federal conservation monitors aboard their vessels. The fishermen argued
that the service had no legal authority to do so, but the high court’s
precedent in Chevron v. NRDC (1984)
obligated the U.S. Circuit Court of Appeals for the District of
Columbia to defer to the government’s interpretation of an “ambiguous”
statute.
Chevron was an “accidental landmark,” as legal scholar Thomas Merrill put it in
2014. At issue in the case was a Clean Air Act regulation interpreting
the term “stationary source” to refer to an entire facility rather than a
single smokestack. This definition enabled facilities to make changes
that didn’t increase their total pollution without triggering onerous
permitting requirements for “new or modified” sources. The justices
upheld the regulation, deferring to the agency’s interpretation of
“ambiguous” text.
For
as long as they’d had the power to do so, federal courts interpreted
statutes for themselves where necessary to decide a case, including in
cases challenging agencies’ positions on the laws they administer. Chevron superseded that approach with a blanket rule of deference.
It’s unclear if the high court intended this fundamental change. Chevron’s
author, Justice John Paul Stevens, regarded the decision as ordinary
pragmatism: “When I am so confused, I go with the agency,” he told his
colleagues as they discussed the case in conference.
By all indications, Chevron’s
reasoning was driven by the need to assemble a court majority on a
difficult interpretive question. That explains the decision’s failure to
grapple with the obvious consequences of its logic. The Constitution
vests the “judicial power” in the courts. “It is emphatically the
province and duty of the judicial department to say what the law is,” as
Chief Justice John Marshall wrote in Marbury v. Madison (1803). Chevron bucked that constitutional command without acknowledging that it did so.
Chevron deference
also conflicts with the Administrative Procedure Act of 1946, which
provides that a “reviewing court shall decide all relevant questions of
law” and “interpret constitutional and statutory provisions.” Chevron doesn’t cite the APA.
While few appreciated Chevron’s
import when it was handed down, its potential was apparent to the
Justice Department. The Reagan administration seized on the decision as a
corrective to the judicial activism of lower courts, especially the
D.C. Circuit, in blocking its deregulatory agenda. The Chevron doctrine
bulldozed the policy-driven obstacles courts had thrown up to block
regulatory reforms. It gained adherents among newly appointed textualist
judges like Antonin Scalia and Kenneth Starr on the D.C. Circuit, who
favored judicial restraint.
But over the years Chevron became
less about judicial restraint and more about agency dominance. With the
movement toward textualism, led by Justices Scalia and Clarence Thomas,
courts gradually returned to constrained formalism in interpreting
statutes. Armed with the Chevron doctrine, however, the administrative state learned to wield its new interpretive power to maximum effect.
Deference
might have been relatively harmless if agencies engaged in a good-faith
effort to carry out unclear statutes. But beginning in the Clinton
administration, Chevron changed
the way they go about their business. Instead of asking what Congress
meant, agency lawyers and decision makers hunt for ambiguities, real or
imagined, to justify their policy objectives.
As agencies relied more on Chevron to
pursue policy agendas, judges were forced to confront a greater range
of asserted “ambiguities” with no standard to distinguish among them.
Judicial review is the essential check on executive overreach, yet Chevron put
a brick on the scale by committing the courts to favor the government’s
positions. It is all too easy for courts, when faced with difficult or
contentious interpretive questions, to waive the ambiguity flag and
defer.
By aggrandizing the power of unelected bureaucrats, the Chevron doctrine
also diminishes Congress. Witness the unseemly but now-routine
spectacle of lawmakers hectoring the president and agencies to enact
policy programs—from student-loan forgiveness to the expansion of
antitrust law and greenhouse gas-regulation—rather than legislating
themselves. The prospect of achieving an uncompromised policy win
through executive action has replaced the give-and-take of the
legislative process.
But
the victories achieved in this fashion are only as durable as the
current administration, and each new president takes office with a
longer list of “day one” executive actions to reverse his predecessor
and implement his own agenda. Donald Trump raised hackles last month when he said he would be a “dictator,” but only on “day one.” He was describing the post-Chevron presidency.
The principal argument of Chevron’s
defenders is “reliance.” Ending deference to agencies, they say, would
create regulatory uncertainty and threaten the viability of the
administrative state. But what reliance interest can there be in a
doctrine that empowers agencies to change course on a political whim,
over and again?
The Supreme Court has already been moving away from Chevron deference,
which it hasn’t applied since 2016. The Covid pandemic heightened the
need for agency flexibility, yet none of the justices’ pandemic-policy
decisions resorted to deference. In recent years, 13 states have
rejected Chevron-style deference in interpreting state law without consequence.
Chevron’s
rule of deference is an abdication of judicial duty, not an exercise in
judicial restraint. It has proved unworkable and corrosive to the
constitutional separation of powers. Forty years later, the court should
correct its mistake.
Mr.
Rivkin served at the Justice Department and the White House Counsel’s
Office in the Reagan and George H.W. Bush administrations. Mr. Grossman
is a senior legal fellow at the Buckeye Institute and an adjunct scholar
at the Cato Institute. He filed a friend-of-the-court brief in support
of the petitioners in Loper Bright. Both authors practice appellate and
constitutional law in Washington.
Appeared in the January 17, 2024, print edition as 'When Judicial Restraint Goes Too Far'.
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