Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2016”: A Sign of the Times

Posted in: Constitutional Law

A few weeks ago, the U.S. House of Representatives, on a near party-line vote, passed a bill—“the Separation of Powers Restoration Act of 2016”—that would, among other things, undo a major Supreme Court ruling of three decades ago, Chevron U.S.A. v. Natural Resources Defense Council. A version of the bill is now before the Senate Judiciary Committee.

Congressional efforts by Republicans to overturn Chevron (and by Democrats to preserve it) are noteworthy not just because Chevron is a very significant Supreme Court case—perhaps the most important ruling that most folks in the country have never heard of—but also because this episode is yet another instance (like the Independent Counsel Act, presidential power to issue executive orders, and executive non-enforcement discretion) in which the political parties’ views about the proper constitutional roles of the three branches of the federal government seem to depend who occupies or is likely to occupy the White House for the foreseeable future.

A bit of background: in the Chevron decision—handed down in 1984—the Supreme Court ruled that certain federal agency interpretations of federal statutes are to be upheld so long as they are reasonable and permissible readings, even if they are not the interpretations that courts would embrace in the first instance. In other words, under Chevron, certain minimally plausible agency interpretations of ambiguous statutes carry the day, even if courts, left to their own devices, would find those interpretations to be less convincing than other interpretations.

Chevron was a relatively undernoticed ruling that became more controversial as it was invoked more often and more ambitiously by the executive branch and by the Court to uphold contested administrative readings of federal statutes. So-called “Chevron deference” became in the 1980s and 1990s a huge topic of academic commentary (mostly in the administrative law field), and the Court over time clarified and refined the test for when Chevron deference would come into play. The Court also created a number of separate but related deference doctrines—cousins of Chevron deference. Some of them are quite technical and are implicated by the proposed bill, but they don’t require separate treatment here.

Supporters of the Chevron deference doctrine have advanced a number of justifications, including: (1) the federal agencies’ technical expertise that might be relevant in administering (and thus giving meaning to) federal statutes that seek to regulate areas—like environmental pollution or telecommunications—in which technical knowledge is important to coherent regulation; (2) the political accountability of the executive branch (compared to the unelected federal judiciary) to make the value judgments that are inherent in many interpretations of sometimes opaque statutory language; and (3) the notion that, in part because of the first two justifications (and others), Congress likely wants agencies to have the interpretive power that Chevron confers.

These justifications (and others) did not convince many skeptics (which included some liberal justices in the 1990s), who viewed Chevron as a power giveaway to the executive branch during a time when conservative Republican administrations (e.g., Reagan and George H.W. Bush) were not on the same policy page with the Democratic Congresses (from the 1940s through the 1980s) that had enacted much of the major federal legislation on the books. The Reagan Justice Department (in which Chief Justice Roberts and Justice Samuel Alito served) was often quite forceful in invoking Chevron wherever it might apply.

Chevron deference has been thought by some to be anomalous in an era when the Court doesn’t really defer to Congress. Although the Court sometimes pays lip service to the idea that congressional statutes come to it bearing a (strong) presumption of constitutionality, the ease and frequency with which the Court has been willing to strike down Congress’s output over the last generation attests to the independence of mind the Court generally brings to its work. Of course, where Congress’s enactments are being challenged, the question to be addressed is the meaning of the Constitution itself rather (as in Chevron settings) than the meaning of a federal statute. But if the Court doesn’t give Congress (a body that, like the executive branch, is politically accountable—perhaps even moreso) the power to define its own powers in arguable cases, why should the executive branch be given the ability to define its own powers (which is often precisely what is at issue when an agency invokes Chevron to defend its interpretation of an empowering statute)?

Enter the proposed Separation of Powers Restoration Act of 2016, which directs federal courts not to afford agencies interpretive deference, but instead tells courts to decide the meaning of all federal law de novo (that is, without any deference to other bodies’ interpretations), unless a federal statute specifically says otherwise with respect to implementation of that statute. (Interestingly, the broad scope of the bill might be understood to mean that Congress doesn’t ever want the Court to defer to Congress’s own interpretation of the Constitution when Congress enacts bills.)

The House Report in favor of the bill argues that Congress currently lacks an incentive to write statutes clearly, and that the executive branch that fills in the ambiguities will take the political heat for making the tough choices, and insulate Congress from the political backlash. It also suggests that agencies are currently encouraged to play politics rather than follow the law, and that courts have an incentive to shirk their job of reining agencies in.

Whether these arguments are convincing, I find it very interesting that conservative members of the Court—who at an earlier time seemed to support the Chevron idea—have recently been voicing their dissatisfaction with the power that Chevron can lead to. For example, a few years ago in Arlington v. FCC, Chief Justice Roberts, joined by Justices Kennedy and Alito, dissented from the application of Chevron deference in a case involving the siting of wireless communication network towers. Although the dissenters did not identify a particular reason to be wary of FCC interpretive power in this setting, they expressed deep concern about giving agencies too much interpretive power generally. Indeed, arguably the most significant aspect of the dissent (and perhaps the entire case) was the dissatisfaction the dissenters expressed with the modern administrative state. They described how, today, administrative agencies “as a practical matter . . . exercise legislative power, . . . executive power . . . and judicial power. . .” , and how the “accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan[, but] a central feature of modern American government.” Echoing some of the rhetoric used by a majority of justices to reject the Commerce Clause as a basis for Congress’s enactment of the Affordable Care Act, the dissenters registered their belief that “the Framers could hardly have envisioned today’s vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities.”

The dissenting justices also lamented how difficult, for practical and other reasons, it is for the president to keep watch over an ever-growing and increasingly active army of federal bureaucrats—“with hundreds of federal agencies poking into every nook and cranny of daily life.” And they worried about the breadth of agency discretion that Congress creates when it passes laws directing the executive branch to regulate “in the public interest” or for such other, equally grandiose but equally undefined, purposes. In this brave (my term, not theirs) new world, the dissent observed, a citizen “confronting thousands of pages of administrative regulations” might “perhaps be excused for thinking that it is the agency really doing the legislating.”

In light of Congress’s delegation of basic, essentially legislative, policy decisions to the executive branch, and given the president’s inability or disinclination to meaningfully oversee all of the alphabet soup of federal agencies, the dissenters were fearful of construing Chevron deference too broadly, because doing so would reduce the power of the courts to keep agencies in any reasonable check.

Although the dissenters did not intimate that they wanted to get rid of Chevron altogether (which is what the proposed bill seeks to do), the dissenters would insist that, before deference is given, there be more of a demonstration that Congress actually wanted to give the agency the power to administer and interpret the specific provision at issue.

For the majority in Arlington (which included the more liberal justices, interestingly enough), that more finely grained approach to Chevron had its own problems. For as dangerous as giving agencies broad interpretive power under Chevron may be, it is better (the majority thought) than giving judges leeway to pick and choose when to defer to agencies and when not to. Judges are even less politically accountable than are agencies, and more prone to generating inconsistent interpretations of statutes based on ad hoc judgments. According to the majority: “The excessive agency power that the dissent fears would [absent a strong Chevron deference doctrine] be replaced by chaos.”

If the Separation of Powers Restoration Act does pass the Senate, I expect it will be vetoed by President Obama, even though 25 years ago I wouldn’t have expected Mr. Obama to be a big fan of Chevron. But if the bill does become law, I think the courts should respect it. The question of what, if any, level of deference to give to agencies when they are interpreting federal statutes really is a question of statutory interpretation, which Congress should be able to control. This Supreme Court is often intent on not letting Congress tell it what to do or not do (and sometimes wrongly takes constitutional offense when Congress is simply trying to lay down a guide for interpreting its own statutes, as in Clinton v. New York), and some might suggest that Chevron saves courts time (by relieving them of what otherwise might be difficult choices between competing reasonable interpretations), but I don’t think any workload increase generated by the undoing of Chevron creates any arguable separation of powers violation. For these reasons, I would expect in this instance the Court to accept and follow Congress’s wishes.

Indeed, to the extent that Chevron deference involves a constitutional question, I think the Constitution may cut against—not in favor of—keeping Chevron. Maybe there is something to commend Chevron’s preference for agencies over courts—and make no mistake, that is what Chevron deference is—but I see at least one big constitutional problem with this categorical choice: if a court misinterprets the meaning of a congressional statute, Congress can in theory amend the statute more easily than it can if an administrative agency misinterprets the statute (under a regime where a court is bound to defer to that misinterpretation.) Any attempt by Congress to rein in an overly aggressive agency interpretation might be met with a threat of a presidential veto. The fact that the executive branch wears many hats (involved in lawmaking, law applying, and law interpreting) complicates efforts by Congress to keep it in bounds. In this respect, broad delegations of power to the executive branch (and letting the agency foxes guard the statutory chickens) are particularly scary and perhaps constitutionally worse than even broad delegations of powers to the judiciary. This is especially true in light of, as the dissenters in Arlington put it, “the dramatic shift in power over the last 50 years from Congress to the Executive.”