Chevron Deference Should Stay Dead

J ust weeks after the Supreme Court’s decision in Loper Bright v. Raimondo, a group of lawmakers is trying to reverse it. Senator Elizabeth Warren and others have introduced a bill that would restore Chevron deference, which requires judges to defer to agencies’ interpretations of ambiguous statutes even against those judges’ better judgment. While the legislators claim their bill promotes democratic governance, their actions would have the opposite effect.

Established in the 1984 case of Chevron v. Natural Resources Defense Council, Chevron deference has been a powerful thumb on the scales in favor of the government. One study found that when courts applied Chevron deference, the agency won the underlying dispute 77.5 percent of the time, compared with just 32.7 percent without Chevron deference.

Weeks ago, the Supreme Court ruled that Chevron deference conflicted with the Administrative Procedures Act, which requires courts to exercise their independent judgment when determining whether an agency has acted outside of congressional authority. Immediately, a chorus of legislators characterized the decision as judicial overreach and vowed to reinstate mandatory deference. Senator Warren, for example, said a new bill codifying Chevron deference was needed because without it, “giant corporations” will be able to use “unelected judges” to “undermine the will of Congress.” She even named it the Stop Corporate Capture Act.

No part of this critique makes sense. First, both agency bureaucrats and judges are “unelected.” In theory, the bureaucrats are at least accountable to the president, who himself is elected. But in practice, no president can scrutinize the thousands of rules and policies that agencies adopt each year. And even if he could, many bureaucrats enjoy removal protections that weaken the president’s ability to recall rogue employees. If Warren is going to call judging undemocratic, she has to concede the same about rulemaking.

Second, there’s no reason to think that bureaucrats have some special expertise that will make them better at interpreting the law than judges — the people who are, it should be said, experts on interpreting law. Agencies’ interpretations of congressional statutes often flip from administration to administration (the National Labor Relations Board is a well-known flip-flopper), making clear that these agencies aren’t just exercising unbiased expertise; they’re engaged in bare partisan politics.

Third, Warren suggests that deference is needed so that corporations don’t capture the judiciary. But there’s no reason to think that’s likely or that the judiciary is more susceptible to capture than agencies are. To the contrary: The judicial-nomination process entails bitter fights over the judges and their judicial philosophy. Judges explain their reasoning in written opinions that are frequently scrutinized by legal scholars and the press. It’s harder for judges to become unduly influenced than it is for the other two branches, which make decisions behind closed doors often with little public reasoning.

Chevron supporters claim to care about democratic governance and vindicating “Congress’s will.” But if that’s the case, legislators should stop relying on deference altogether and simply pass clearer laws.

In fact, Chevron encourages sloppy lawmaking and rule by unaccountable bureaucrats. When bureaucrats enjoy deference, politicians can pass broad, capacious statutes and rely on their friends in an agency to interpret it in ways that never would’ve made it through Congress. As Loper Bright’s attorney observed at oral argument:

[Legislators’] choice on a controversial issue is [to] compromise and forge a long-term solution at the cost of . . . getting a primary challenger or, instead, just call up your buddy, who used to be your co-staffer, in the executive branch now and have him give [you] everything on your wish list based on a broad statutory term.

He went on to say that Congress’s tendency with regard to big and divisive issues, like student-loan forgiveness and the eviction moratorium, is to pass them off to agencies rather than do the dirty work themselves. Chevron enabled that perversion of democratic governance. The demise of Chevron now forces lawmakers to actually do their jobs and to suffer any political backlash that comes with making tough choices.

There’s yet one more problem with Warren’s bill: Like Chevron, it might meet its fate in the Supreme Court. When Loper Bright was being heard, many argued that Chevron deference is unconstitutional because it usurps congressional and judicial power and grants it to the executive branch. The Supreme Court sidestepped these arguments by saying instead that Chevron must fall because it conflicted with a federal statute. But if Congress explicitly authorizes Chevron, that will put the constitutional debate squarely before the Court.

Given the Court’s strong defense of the separation of powers in recent years, it’s possible those constitutional arguments would win. Contrary to what some legislators want you to believe, that would be a good thing for democracy.