Anthony Kennedy likely won’t be remembered for his administrative-law jurisprudence, but one of his last opinions on the Supreme Court captured widespread concerns about the administrative state. Concurring with the majority opinion in Pereira v. Sessions, Justice Kennedy lamented the “reflexive deference” lower federal courts often show federal agencies, particularly on questions of statutory interpretation under the doctrine of “Chevron deference.” Kennedy lamented how this doctrine had “come to be understood and applied” in federal courts and suggested it was “necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”
Justice Kennedy is hardly alone in having raised doubts about Chevron. Justice Clarence Thomas has warned that Chevron unduly constrains the judicial function, and Justice Neil Gorsuch, even before he was on the Court, warned that it “seems” to constitute “a judge-made doctrine for the abdication of the judicial duty” that threatens to transfer “the job of saying what the law is from the judiciary to the executive,” inviting “the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.”
Off the bench, conservative commentators have been even more critical, suggesting Chevron is a dire threat to the democratic order. Columbia University law professor Philip Hamburger warns that it creates “systemic bias” in favor of the federal government, while lawyer and regulatory scholar Peter Wallison argues that Chevron is the primary source of the administrative state’s “threat to democracy.” The House passed legislation to abrogate Chevron in 2016, and the Supreme Court now regularly receives amicus briefs urging Chevron’s demise.
How did a little administrative-law doctrine become such a flash point? It’s a good question.
Chevron deference takes its name from Chevron USA v. Natural Resources Defense Council, the 1984 case in which a unanimous Supreme Court announced a two-part test for evaluating agency interpretations of federal statutes. First, the reviewing court must look to the statute itself to see whether Congress spoke directly to the question at issue. If so, the statutory text controls, without regard for the agency’s preferences. If, however, the statute is ambiguous on the precise question at hand, a reviewing court is to defer to the interpretation offered by the implementing agency, provided that interpretation represents a “permissible” interpretation of the relevant text. In practice, this means that if the legislative language adopted by Congress is not particularly clear, the agency will have wide latitude to interpret the statute in accord with the executive branch’s policy preferences, even if this means departing from the most plausible understanding of the statute.
Underlying Chevron is the idea that when Congress enacts broad regulatory statutes that require and empower administrative agencies to erect and implement vast regulatory programs, it is inevitable that there will be questions or issues that Congress overlooked, and Congress expects that the implementing agency will fill in the details, clarifying ambiguities and resolving unanswered questions. Whether the question is what constitutes a “telecommunications service” or how to identify the boundaries of “waters of the United States,” Congress often speaks in generalities and expects agencies to provide the specifics.
Understood as a product of delegation, Chevron is not a free pass for agencies to interpret federal statutes any way they want in any circumstance. As Chief Justice John Roberts has explained, the premise of Chevron is that “a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps,” but there are also instances in which it is not appropriate to assume Congress meant to delegate such power. This means that courts must assure themselves both that a statute is ambiguous and that Congress has delegated such authority. It is not enough that a statute is complicated or contains dense language that is difficult to parse. It must truly be ambiguous. In addition, not any old ambiguity will suffice to trigger deference. Under the delegation understanding of Chevron, it is proper for courts not to defer in cases raising constitutional concerns, presenting “major questions” with broad economic ramifications, or concerning matters that Congress cannot be presumed to have delegated to the implementing agency.
As Justice Kennedy noted, however, some judges do seem to view Chevron as an excuse to punt hard questions of statutory interpretation or administrative law to federal agencies. It’s one thing to believe Congress delegated authority to a regulatory agency to define an unclear term with greater precision, but it’s quite another to assume that any infelicitous statutory drafting constitutes a delegation of power to the executive branch. Yet that is precisely what some courts have done, feeding concerns that Chevron enables administrative overreach.
While the current debate presents Chevron as the handmaiden of the administrative state, it is worth pausing to consider the doctrine’s history, for Chevron was born of a Reagan-administration attempt to reduce regulatory burdens under the Clean Air Act. Under that law, “stationary sources” of regulated pollutants were required to obtain permits when making facility changes that could increase emissions. The question was what constitutes a “stationary source” — each smokestack or opening from which pollutants could emanate, or the facility as a whole. Environmentalist groups preferred the former interpretation, as had the Carter administration, but the act itself did not answer the question. Thus in the early 1980s the Reagan administration promulgated regulations adopting the latter, plant-wide definition, as this would result in a more flexible and less costly regulatory regime.
The U.S. Court of Appeals for the D.C. Circuit, in an opinion by then–judge Ruth Bader Ginsburg, rejected the Reagan EPA’s approach. While acknowledging that the text of the law was unclear, Judge Ginsburg argued that the more stringent interpretation was warranted so as to effectuate the broader goals of the act. The Supreme Court, however, would have nothing of it and declared that this sort of choice — whether to adopt a more stringent or a more flexible regulatory policy — was the sort of choice Congress had left to the EPA.
When it was initially decided, no one thought Chevron was a particularly revolutionary decision, least of all its author, Justice John Paul Stevens. In his view, Chevron largely embodied the deference to agencies long found in administrative law. The doctrine rose to prominence as the Reagan and Bush administrations used it to beat back broad judicial interpretations of federal statutes used to force agencies to adopt ever-tighter regulatory measures. Throughout its history, Justice Antonin Scalia was among Chevron’s most ardent defenders, and Justice Stephen Breyer was among its greatest skeptics.
As important as it may be, liberals and conservatives alike have a tendency to overstate Chevron’s importance. In the unlikely event Chevron were overturned, federal agencies would retain a quiver full of deference doctrines to wield in defense of their regulatory decisions, including the broad deference that agencies enjoy to make policy determinations, exercise enforcement discretion, and reach judgments on the meaning of scientific and technical analyses. Under the long-standing Skidmore doctrine — which predates Chevron by 40 years — courts are still required to heed an agency’s well-considered views about the meaning of federal statutes, particularly agencies that can be expected to have technical or other expertise.
Without Chevron, the extent to which judges defer to agency interpretations of statutory schemes would likely depend on the subject matter. The more complex and technical the subject matter — think of the intricacies of telecommunications or environmental regulation — the less likely it is that an abandonment of Chevron would produce a major effect on case outcomes. Generalist judges would continue to recognize that they know less about how these regulatory schemes can and should operate than do the federal agencies that have been delegated that responsibility. In other areas, however, such as labor or immigration — areas that don’t require the same amount of scientific or technical expertise and where agency opinions tend to be less consistent over time — the change could be quite significant, but not in ways that would necessarily restrain the administrative state. As noted above, Chevron rose to prominence as a tool to restrain judges from forcing agencies to regulate more aggressively than politically accountable agency heads were willing to do. The Trump administration is having a hard enough time defending its deregulatory initiatives in federal courts. Without Chevron, this task will become immensely more difficult.
While the focus on Chevron may be misplaced, there are sound reasons to be concerned about the size and scope of the administrative state and the broad impunity with which federal regulatory agencies exercise power. The problem, however, is less that courts sometimes defer to federal-agency interpretations of ambiguous statutes through which Congress delegates regulatory authority and more that the legislature is so profligate with its delegations.
Consider again the facts of Chevron itself. The choice between competing interpretations of the phrase “stationary source” was less a linguistic or interpretive exercise than a policy choice. Congress had failed to answer the question, having drafted statutory language open to either interpretation. In deferring to the EPA, the Supreme Court recognized that a federal agency, headed by a political appointee removable at will by the president, had greater claim to the power to make this policy choice than did the Court. The alternative was to force the EPA to maintain a more stringent regulatory definition in service of the Clean Air Act’s lofty yet underspecified aspirations, even though the American people had elected a president intent on lessening federal regulatory burdens — and that is precisely the opinion that Ginsburg, then an appeals-court judge, had written for the lower court.
The real problem is that many statutes are written so broadly that what agencies have to consider is far more expansive, and consequential, than what constitutes a “stationary source.” In short, the problem with Chevron is not that courts recognize that Congress has delegated such policy choices to federal agencies but that Congress is so profligate with such delegations in the first place. The abdication taking place is less on the federal bench than in the halls of Congress, where our legislators have forgotten that it is their job, first and foremost, to enact the laws that govern the nation.
Unless and until courts are willing to enforce meaningful limits on the delegation of authority to federal agencies — a far heavier lift than constraining Chevron — the underlying problem will remain. If we want Chevron and other deference doctrines to be less important, Congress needs to stop providing so many opportunities for these doctrines to apply, both by drafting legislation more carefully and by regularly revisiting older statutes that might otherwise be used as new sources of agency authority.
There are good reasons to be concerned with the scale and scope of the administrative state, and in particular the extent to which courts allow agencies to simultaneously articulate and enforce rules the rest of us must follow, but it is unclear that Chevron is the source of the infection and even less clear that removing this doctrine would provide much of a cure. Responsibility for reining in the administrative state is ultimately in the hands of Congress, not the courts.
This article appears as “The Danger of Deference” in the June 24, 2019, print edition of National Review.