Over at the Law and Liberty blog today, I have a post with a provocative (click-baity?) title on Kent Barnett, Christina Boyd, and my new paper Administrative Law’s Political Dynamics (Vanderbilt Law Review forthcoming). Here’s a snippet from my post:
The call to eliminate Chevron deference has largely come from those right of center. But it would be a mistake to conclude that everyone center-right is, or should be, in favor of eliminating administrative law’s deference doctrines. There is deep divide on the right with respect to the role of federal courts in our constitutional republic. Some view courts as a critical safeguard of liberty, and thus encourage courts to actively engage in checking the actions of the political branches. Think Randy Barnett and Philip Hamburger. Others, by contrast, argue that because federal courts are not democratically accountable, they should exercise judicial restraint, embrace the “passive virtues” when possible, and otherwise adopt a minimalist and deferential approach to judicial review of actions by the political branches. Think Michael Stokes Paulsen and Adrian Vermeule.
For years, if not decades, the proper role of federal courts has thus been subject to an ongoing and vigorous debate within the Federalist Society and related circles.
Indeed, the Chevron Court itself grounded this deference doctrine in part on the need to reserve political (or policy) judgments for the more politically accountable agencies: . . . .
In other words, Chevron deference strives to remove politics from judicial decisionmaking. Such deference to the political branches has long been a bedrock principle for at least some judicial conservatives.
Does Chevron deference achieve this goal of removing politics from judicial decisionmaking?