Age is not coextensive with legal merit where judicial opinions are concerned.
As then-Justice Antonin Scalia remarked, longevity “alone does not make up for brazen invention” and weeds become no less weedlike simply by deepening their roots.
So, when outlets like National Public Radio report with alarm that “The Supreme Court … could overturn a 40-year-old legal doctrine,” before joining in the anxiety, we are obliged to not be overawed by age and instead examine the doctrine’s merits and underpinnings.
The legal doctrine NPR referenced is the Chevron Doctrine, derived from then-Justice John Paul Stevens’ 1984 opinion in Chevron v. Natural Resources Defense Council. Defined by a distinctive two-part test, the doctrine directs federal courts to defer to federal agency interpretations of law if (1) the law is ambiguous in some way and (2) the agency’s interpretation is “reasonable.”
The cause of NPR’s concern is a case called Loper Bright v. Raimondo, in which New Jersey fishermen have asked the Supreme Court to overturn or greatly limit the Chevron doctrine.
Time and endurance have given that deference doctrine a veneer of legitimacy. But Chevron’s origins and effects give reason to doubt that the Supreme Court should retain it.
Not a Blank Slate
When the Supreme Court decided Chevron in 1984, it was not writing on a blank slate. In the 1946 Administrate Procedure Act, which remains in effect today, Congress directed courts hearing agency cases to “decide all questions of law.”
Congress gave no hint that courts ought to set aside the best reading of law and defer to an agency that has a vested interest in the outcome. Were agencies entitled by law to deference, then agencies, not courts, would effectively decide the disputed legal issues.
Nevertheless, Stevens’ Chevron opinion ignored the Administrate Procedure Act, though the case before the court hinged on whether the Environmental Protection Agency had correctly interpreted the Clean Air Act.
A plausible explanation for Stevens’ oversight, documented in Tom Merrill’s book “The Chevron Doctrine,” is it that neither Stevens nor any other member of the court intended to devise a novel rule binding in all future agency cases when they decided the case.
Stevens was decidedly undeferential in his analysis of the case, scrutinizing the statutory text, legislative history, past agency practice, and present justification instead of following the Chevron two-step inquiry.
The Supreme Court, in fact, would not use the famous two-step approach for another two years, and when it did, Stevens dissented, relying on pre-Chevron methods of interpretation rather than following the doctrine he had supposedly created.
Invention of Lower Courts
Chevron’s evolution into rule-like doctrine was an invention of the lower courts. Enticed by the seeming simplicity of following two predetermined steps, Merrill explains that the courts failed to appreciate that “the substance of the inquiries” into the law’s ambiguity and the agency’s reasonableness “are not rule-like at all.”
The open-ended inquiry and a too-pervasive regard for specialized expertise have given courts license to, as Justice Elena Kagan put it, “wave the ambiguity flag just because it found the regulation impenetrable on first read” and then muse about how eminently reasonable the agency has been.
The result has been an agency win rate of roughly 70% in Chevron cases. Chevron has been the jurisprudential equivalent of fertilizer for the growth of the federal administrative state.
So, why would NPR or its listeners fear the end of Chevron deference? Professor Andrew Mergen of Harvard Law School recently explained to NPR that “the reality is that government needs this sort of flexibility.” Judges, he reminds us, “are busy, busy people” and the result of “losing the Chevron doctrine will be to bog courts down and create instability.”
Understating the Opposition
Moreover, he said, there are only two types of people who do not like Chevron deference: “really, really big corporations” and “part of the conservative movement.”
Let us take those in order. It has long ceased to be plausible that Chevron provides just a little flexibility for agencies to work out the details of Congress’ laws. Decades of Chevron have habituated agencies to implying powers of serious scope and consequence from silences and contrived ambiguities in statutory text.
Agencies think they are co-lawgivers with Congress.
Those who doubt this can read the Supreme Court’s opinions in cases where a health agency discovered the power to interfere in landlord-tenant relations, where a workplace safety agency discovered the power to impose a nationwide vaccine mandate, and where an educational agency decided it was sound fiscal policy to erase $430 billion in outstanding student debt, all without any direct instruction from Congress.
Or skeptics could simply confine themselves to the case at hand, Loper Bright, in which the National Marine Fisheries Service interpreted its way to an unlimited stream of agency funding at the expense of fishermen from nothing more than statutory silence.
Deference to agency interpretations of law is no longer mortar in the gaps between Congress’ major policy decisions. Instead, it has become a breach in the dam that lets legislative discretion flow freely from Congress into that expanding vat of permanent federal employees, who are unelected and who wield expertise that is not—and cannot be—value neutral.
Judges are undoubtedly busy. So is Congress. But when did an amorphous sense of busyness become a serious legal justification for Congress and the courts to delegate their constitutionally assigned responsibilities to bureaucrats in the executive branch?
Convenience Isn’t Sufficient Justification
Are bureaucrats less busy because they operate with fewer constraints? Convenience and expediency are not sources of legal authority. And no entity is more adept at interpreting laws than courts. The notion that asking them to do so in agency cases would bring the whole judicial enterprise to a halt is difficult to take seriously.
Finally, are large corporations the natural enemy of Chevron? That Loper Bright was brought by small-business owners suggests otherwise.
Generally, economic power has only become more concentrated in large corporate enterprises as more regulatory power has been concentrated in the federal administrative state. If the two are naturally opposed, why does their development appear symbiotic?
Modern corporations are bureaucratic entities organized around the same principles of management, expertise, and expedience that undergird the administrative state. As corporations increasingly concern themselves with the expansion of political and social influence, it seems that both their organizational principles and ends converge with those of the permanent bureaucratic-managerial class.
No doubt some reasons for opposition to Chevron are economic; economics are certainly significant for the Loper Bright fishermen who would see their annual income decline by 20% if the Fisheries Service has its way.
But some of that opposition is philosophic. Some recognize Chevron as one significant part of a larger project to change both the structure and the nature of our government without consulting the governed.
That change is a shift towards post-political governance wherein the traditional representative institutions are emptied of power and reduced to conduits funneling public funds into the insulated realms where expertise putatively reigns.
If NPR listeners suspect their fellow citizens will not agree to pursue the same ends as the expert class, then NPR listeners will naturally be anxious to preserve a power center that is relatively immune to changes in the political branches.
The Supreme Court may or may not strike down Chevron in Loper Bright. It may curtail it or introduce a new, more modest form of deference. But perhaps, if given the chance, Congress and the courts will remember their natural strength and forget the learned helplessness that Chevron has taught them for 40 years.
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