Notice & Comment

Deference’s Discontents

I’d like to chip in with some quick thoughts on recent, skeptical rumblings in the Court about deference to administrative agencies. What interests me most here is not the arguments separate Justices are making against deference—they are not new to administrative law thinking, though their return to judicial discussion is more novel. Rather, I’m wondering why they are starting to appear with frequency. As counterintuitive as it might sound, I think part of the reason why the Court is more hesitant to recognize agencies’ lawmaking power is Congress’ unwillingness to exercise its own.

The proximate cause of my reflections here is Justice Thomas’s concurrence today in Michigan v. EPA, in which he questions the constitutionality of Chevron deference. But his is not a lone cry in the wilderness, though it may be the most strident. Consider: the Chief Justice giving the back of his hand to IRS’s request for deference in King v. Burwell before ultimately siding with the agency on the merits; the Chief Justice’s impassioned dissent (joined by Justices Kennedy and Alito) to City of Arlington v. FCC’s holding that agencies should get deference on the scope of their own authority; to Justice Kennedy’s withholding of deference in Gonzalez v. Oregon; and finally, a growing line of opinions for the Court and separate writings questioning the validity of deferring to agencies interpretations of their own regulations (e.g. Perez v. Mortgage Bankers; Christopher v. SmithKline Beecham; Talk America v. Michigan Bell Telephone).

We might also note Justice Kennedy’s failure to consider applying any deference doctrines in siding with the administration in his recent Inclusive Communities decision, which allowed disparate-impact suits under the Fair Housing Act. This does not strike me as a mere oversight. His majority opinion shows awareness of an earlier Justice Scalia concurrence stating that Chevron deference applies to question of whether disparate-impact claims are available under the ADEA. Furthermore, the Solictor General’s amicus brief leads with the argument that its authoritative interpretation in favor of disparate impact merits Chevron deference.

And none of this litany includes aggressive applications of Step One of Chevron that arguably gut the doctrine even when it ostensibly applies.

These decisions may not represent a dominant trend—or any trend at all. After all, there are lots of cases where the court simply applies Chevron without question. But they are enough for me to sit up and take notice. This is especially the case because the most recent cri de coeur against deference, Justice Thomas’s concurrence in Michigan v. EPA, comes from the author of one of the most expansiveChevron decisions to date, NCTA v. Brand X, which held that agencies interpretations of ambiguous statutes can trump judicial interpretations. The Chief Justice, moreover, as a former Executive Branch lawyer and veteran of the Chevron-loving D.C. Circuit, is not the most obvious opponent to deference. What is going on here?

One answer might be politics. The cynic might see Republican-appointed judges limiting deference to Democratic administrations. But that’s too simple. The Chief sided with the administration in King, as did Kennedy in Inclusive Communities. Scalia, no friend of the Obama administration, has held fast to Chevron deference, even as he is skeptical about deference to interpretation of agency rules. And Justice Breyer’s sparing particularity with respect to Chevron deference, which infuriates its defenders to no end, seems to be a cross-cutting methodological commitment.

At first glance, this resistance to deference seems particularly odd given the paralysis plaguing Congress on any issue of importance. In fact, the conventional wisdom might hold that deference would be more important now: if Congress can’t act, somebody needs to, so it might as well be politically accountable and technologically expert agencies who administer statutes with broad delegations of authority to pursue wide-ranging goals. In fact, Cass Sunstein, the paragon of moderate, conventional wisdom in administrative law scholarship, has made this very argument.

But the realization of such an aspiration could lead to a backlash. The less Congress does, and the more administrative agencies do within broad delegations of authority, the greater the sense that something has gone wrong in the order of things. And this administrative substitution of a Congress that cannot act is arising in context after context in American governance. Deference to agencies may seem more palatable when it is conceivable that Congress would respond in the event it disagreed with the agency’s policymaking choice. There, the courts would be cultivating a dialogue between the political branches that allows for play in the administrative joints, but no deep democratic deficit. And, while that vision of the world was plausible when Chevron came down in 1983, or when Seminole Rock came down in 1945, it seems as dated as a Schoolhouse Rock video today.

Perhaps the renewed judicial resistance to deference is not a power grab or simply result-oriented tinkering with standards of review. Perhaps it, in fact, reflects discomfort with giving a warm welcome to our technocratic overlords while Congress postures. Deference stinginess, from this perspective, may be a democracy forcing canon: “If you want to do something about X, Congress (or Americans!), it’s on you to make some reasoned choices, not ride the coattails of broad language enacted in 1973.” Whether this would work, or even whether this impulse is well-founded, are beyond the scope of a single blog post. But I think this dynamic may be underlying the recent, increasing discontent with deference.

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