The Future of Chevron Deference II: Doubts about Doubts
In a previous post I laid out some of the reasons to doubt the likely continued vitality of Chevron deference. In this post, however, I develop some doubts about those doubts.
First, Kennedy J’s reasons in Pereira do not lend themselves to an unequivocal anti-Chevron reading. Although he suggested the “premises” underlying Chevron could be reconsidered in an appropriate case, he seemed equally if not more concerned with judicial implementation of Chevron, criticising the “reflexive deference” of appellate courts.
His concern about the “premises” of Chevron might even be read as rolling into the concern he highlighted relating to judicial deference to agency interpretations of the limits of their jurisdiction. For Justice Kennedy, this is nothing new: he joined Chief Justice Roberts’ forthright dissent in City of Arlington v Federal Communications Commission. In response to Justice Scalia’s majority opinion according Chevron deference to the Commission’s interpretation of a statutory provision setting out the scope of its authority relative to the state of Texas, Chief Justice Roberts wrote:
An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.133 S. Ct. 1863 at 1877 (2013).
Although I think that Justice Scalia was right that, analytically, “jurisdiction” is an empty concept incapable of identifying questions which should be subject to de novo judicial review, the concern expressed by Chief Justice Roberts, whose opinion Justice Kennedy joined, is a familiar one. Inasmuch as Justice Kennedy was calling for City of Arlington to be reconsidered, he was not calling for anything particularly radical.
Indeed, concerns about Chevron’s domain are nothing especially new either. The Supreme Court has sought to limit the scope of Chevron deference by developing a Chevron ‘step zero’. As Justice Souter explained in United States v Mead Corporation:
[An inescapable] feature is the great variety of ways in which the laws invest the Government’s administrative arms with discretion, and with procedures for exercising it, in giving meaning to acts of Congress. Implementation of a statute may occur in formal adjudication or the choice to defend against judicial challenge; it may occur in a central board or office or in dozens of enforcement agencies dotted across the country; its institutional law-making may be confined to the resolution of minute detail or extend to legislative rule-making on matters intentionally left by Congress to be worked out at the agency level…Although we all accept the position that the judiciary should defer to at least some of this multifarious administrative action, we have to decide how to take account of the great range of its variety…If…it is simply implausible that Congress intended such a broad range of statutory authority to produce only two varieties of administrative action, demanding either Chevron deference or none at all, then the breadth of the spectrum of possible agency action must be taken into account533 US 218 at 236 (2001).
Ensuring that the scope of Chevron is appropriately tailored (at step zero) is, again, hardly radical. If these concerns are taken up by the Court, the result will be that Chevron remains a significant feature of the American legal landscape.
Second, the state supreme court decisions are more equivocal than the rhetoric would suggest.
tIn Wisconsin, Kelly J’s lead judgment, which relied heavily on constitutional law arguments, did not attract the agreement of his colleagues. Bradley J (joined by Abrahamson J), upbraided her colleague for raising the constitutional issue sua sponte (at para. 114), whilst Ziegler J (joined by Roggensack CJ) preferred to eliminate deference “on the basis of judicial administration” (at para. 142) and Gableman J (also joined by Roggensack CJ), similarly, thought the court was “free to dispense with deference as simply as we adopted it” (at para. 161).
Moreover, although the Wisconsin Supreme Court abolished its ‘great weight’ deference, it retained ‘due weight’ deference. Under Wisconsin statutory law, “due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it” in reviewing agency interpretations of law. According to this type of deference:
The agency should be prepared to explain how its experience, technical competence, and specialized knowledge give its view of the law a significance or perspective unique amongst the parties, and why that background should make the agency’s view of the law more persuasive than others.2018 WI 75 at para. 79.
In Mississippi, for all the strong rhetoric about upholding the role of the judiciary in interpreting statutes, the case in question ended with a victory for the agency! One can easily imagine Mississippi adopting, in substance, the ‘due weight’ formulation used in Wisconsin, with agency interpretations being upheld because they are, all things considered, more persuasive than the alternatives.
Third, although Justice Gorsuch has staked out a clear anti-Chevron position, he is some distance away from his colleagues Alito and Kavanaugh. Justice Alito was quite measured in Pereira, going no further than noting that Chevron has been “maligned” by other members of the Court.
Meanwhile, Justice Kavanaugh, in his time as an appellate judge on the Court of Appeals for the District of Columbia Circuit, often deferred to agency interpretations of law. As Kent Barnett, Cristina Boyd and Christopher Walker observe:
Of the 33 relevant Kavanaugh observations in our data, he voted in favor of the agency’s statutory interpretation 25 times. Kavanaugh’s overall 75 percent rate of support for agencies in these cases was slightly above the overall average for all judges in our data at 71 percent.
In his Harvard Law Review article on statutory interpretation, he is not at all dismissive of Chevron. After noting how it incentivises aggressive agency interpretations of statutes he nonetheless accepts that “makes a lot of sense in certain circumstances” (at p. 2152) and reaches a nuanced conclusion:
In short, the problem with certain applications of Chevron, as I see it, is that the doctrine is so indeterminate — and thus can be antithet-ical to the neutral, impartial rule of law — because of the initial clarity versus ambiguity decision. Here too, we need to consider eliminating that inquiry as the threshold trigger.(2016) 129 Harvard Law Review 2118 at p. 2154.
Indeed, Judge Kavanaugh’s most detailed concern about Chevron is very much marginal: deference on so-called ‘major rules’ is more of a niche issue than a wedge issue; from the perspective of a true believer in judicial supremacy on questions of law, Justice Kavanaugh’s concern to develop a Chevron exception at the margin is more likely to be viewed as apostasy than as devotion to the cause.
Finally, the anti-Chevron arguments are surprisingly weak, with their analytical and philosophical rigour generally inversely proportionate to their rhetorical force. I will explain why in my next post, with particular reference to Justice Gorsuch’s screed in Gutierrez-Brizuela.
This content has been updated on March 1, 2019 at 10:37.