Notice & Comment

The Cowering State

I’ve got an article at The Atlantic about the arguments in Relentless and Loper-Bright.

In a world without Chevron, agencies will be hard-pressed to know how deferential the courts will be in reviewing decisions that mix policy and law. “If I’m an agency and I’m trying to be responsible, how is this going to work as a practical matter?” Justice Jackson asked. “Isn’t it sort of impractical and chaotic to have a world in which every undefined term in a statute is subject to litigation, if you’re trying to govern?”

Courts like to think that judicial review trains agencies to do better in the future, much as you might use firm discipline to train a dog. Tell agencies that they’ve behaved arbitrarily, and they’ll behave more reasonably in the future. Tell them they’ve skipped a procedural step, they’ll make sure to cross their t’s next time. Tell them they read the statute wrong, they’ll stick closer to the law.

The lesson that agencies actually learn tends to be very different. They lose so regularly, and for such a wild and whirling array of reasons, that the outcome of a lawsuit, from their perspective, looks pretty random. No matter how many pages they spend defending their rule or how carefully they conduct their legal analysis, they may still lose, and often for reasons that strike experts in the field as idiosyncratic or baffling. You don’t correct a dog’s behavior if you smack it at random intervals. You just make it cower in the corner.

I’m not convinced that ending Chevron, by itself, will inevitably grind the gears of government to a halt. But I’m also sure that it won’t make for a more functional state. You can read the whole thing here.


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