Bednar Response to Administrative Law’s Political Dynamics
Last fall, in the Vanderbilt Law Review, Kent Barnett, Christina Boyd, and I published the latest article from our Chevron in the circuit courts dataset, titled Administrative Law’s Political Dynamics. Here’s the abstract for that paper:
Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court’s desire to temper administrative law’s political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congress charged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have empirically documented how politics influence circuit court review of agency statutory interpretations in a post-Chevron world. Among other things, they have reported whistleblower and panel effects, in that ideologically diverse panels are less likely to be influenced by their partisan priors than ideologically uniform panels.
Leveraging the most comprehensive dataset to date on Chevron deference in the circuit courts (more than 1,600 cases over eleven years), this Article explores administrative law’s political dynamics. Contrary to prior, more limited studies, we find that legal doctrine (i.e., Chevron deference) has a powerful constraining effect on partisanship in judicial decisionmaking. To be sure, we still find some statistically significant results as to partisan influence. But the overall picture provides compelling evidence that the Chevron Court’s objective to reduce partisan judicial decisionmaking has been quite effective. Also contrary to prior studies, we find no statistically significant whistleblower or panel effects. These findings have important implications for the current debate over the future of Chevron deference. Our findings identify a significant, overlooked cost of eliminating or narrowing Chevron deference: such reform could result in partisanship playing a larger role in judicial review of agency statutory interpretations.
I had always wanted to publish an article in the Vanderbilt Law Review, as they publish so many great administrative law articles and have a top-rate faculty in the field. The law review editors also kindly organized a student event at Vanderbilt Law School (co-sponsored by the law school’s Federalist Society student chapter), where I presented our paper and Professor Kevin Stack offered an insightful response before opening up the discussion with the audience. In addition to the live event, the law review editors also secured a written response from rising administrative law star (and current Vanderbilt PhD student) Nicholas Bednar.
I hope to find time to blog more about Bednar’s terrific response this summer. But for now, I wanted to flag that the response — What to do about Chevron—Nothing — has been published in the law review’s online companion. Here’s the short abstract, but the full response is definitely worth a close read:
For thirty-five years, doctrinalists have tormented themselves trying to dissect the Supreme Court’s most infamous administrative-law doctrine: Chevron deference. We have asked when and how it applies. At the same time, we have asked whether Chevron should exist at all. In other words, does Chevron have any normative advantages that warrant its continued existence and prolific use? Despite thirty-five years to work out our differences, the academy—and the courts—remain torn on the answers to all of these questions.
Thanks to Nick and Kevin for thoughtful engagement with our work, and to the law review editors for both terrific editing and efforts to help our scholarship reach a broader audience.