As we await the Court’s decision in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, where the justices have been asked to overturn or substantially narrow the application of Chevron deference to judicial review of agency rules, expect a lot of howling about the impending defeat of cherished agency expertise. This sentiment is especially pronounced from special interests who thrive off the work of bureaucrats who enjoy substantial isolation from democratic accountability. Earthjustice is a fan of Chevron deference because it “allows for expertise to craft effective policies.” The AFL-CIO, a strong defender of Chevron, touts “the expertise within agencies that have been given authority to ensure public health, safety and financial security as well as many other critical jobs.” Some of us actually look to the people’s elected representatives, not unelected bureaucrats, to do that.
The Supreme Court itself has recognized in a line of cases that unelected bureaucrats should not decide major questions. Major or minor, the number of questions decided by agencies has proliferated over the course of generations. For more than a century, distrust of the electorate and the ceding of more and more power to the unelected—the phenomenon associated with the Progressive Era—was the dominant paradigm of governing. The vast bulk of the executive branch became insulated from elected officials without serious challenge, even as the everyday experience of citizens rendered the notion of the superior competence of government bureaucrats ridiculous. More recently, the battle lines have been drawn as conservatives recognized the problem with a system that had departed from the structural Constitution of the Founders. As Senate Minority Leader Mitch McConnell notes in today’s Wall Street Journal, liberals’ ongoing faith in unelected bureaucrats “might come from a good-faith trust in ‘experts,’ or a sincere belief that sound policy is too valuable to risk in elections. But at its core, it is a rejection of democratic accountability in favor of the administrative state.”
And the reality behind the veneer of expertise is that instead of applying their technical prowess to figure out the most faithful interpretation of a statute, agency officials are most likely to push their own agendas regardless of whether that would contort the underlying law. Then-Judge Brett Kavanaugh recognized while sitting on the D.C. Circuit the dynamic that caused the executive branch “to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.” As he explained,
with Chevron in the mix, that inherent aggressiveness is amped up significantly. I think some academics fail to fully grasp the reality of how this works. We must recognize how much Chevron invites an extremely aggressive executive branch philosophy of pushing the legal envelope (a philosophy that, I should note, seems present in the administrations of both political parties). After all, an executive branch decisionmaker might theorize, “If we can just convince a court that the statutory provision is ambiguous, then our interpretation of the statute should pass muster as reasonable. And we can achieve an important policy goal if our interpretation of the statute is accepted. And isn’t just about every statute ambiguous in some fashion or another? Let’s go for it.” Executive branch agencies often think they can take a particular action unless it is clearly forbidden.
This can translate into “a situation where every relevant actor may agree that the agency’s legal interpretation is not the best, yet that interpretation carries the force of law. Amazing.”
Eugene Scalia recently shared his insight from his tenure as secretary of labor: “For the first time since I became a lawyer, I wasn’t doing much interpreting. Often, my job involved choosing among a menu of options presented by staff.” He concluded, “At minimum, Chevron deference is a misnomer. You don’t defer to someone’s performance of something he didn’t do. My actions were policy choices, often outfitted after the fact with legal explanations I didn’t review.” The senior agency officials who receive Chevron deference, as a matter of practice, simply “don’t interpret.” Even worse, “at times they’re indifferent to—even contemptuous of—the right legal answer.”
Judges have a variety of tools they can use to interpret statutes. Chevron deference takes away their statutory toolbox. Overruling Chevron would bring it back. Agencies need to be put back into their place. That does not mean courts would or should ignore any valuable insights to be gleaned by agency expertise in the application of complicated technical considerations to statutory interpretation. As the Court recognized in Skidmore v. Swift & Co. (1944), agency actions and interpretations “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Naturally, courts may look at fact-laden realities on the ground that shed light on general statutory language, and among such observations are those that come from agencies. They may be considered alongside other components of a court’s statutory toolbox. This is especially true with circumstances confronted by agencies at the time the relevant statute was passed, which may shed light on its original meaning.
A post-Chevron world would most likely return case law to the standard articulated by the Court in Skidmore. Skidmore is often mislabeled as deference. But that decision critically grasped the distinction between agencies’ “power to persuade” courts and their “power to control” them. Specifically, “[t]he weight of” an agency’s “judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”
In other words, an agency in a post-Chevron world could no longer be arrogant, hubristic, or sloppy if it wanted to win in court. It would have to do its homework and rely on the merits of its argument rather than the expectation of favoritism from judges. That would be healthier for all government institutions involved, not to mention ordinary citizens who could then breathe a sigh of relief that the judicial thumb will no longer be on the scale against them.