Congressional power and the war on Chevron
By Jamelle C. Sharpe
Calls to reign in federal administrative power have increased to almost deafening levels in recent years. Contributing to the din are Members of Congress and Supreme Court Justices (former, current, and aspiring) who have reserved special disapprobation for the Court’s Chevron deference jurisprudence. Simply stated, Chevron deference instructs courts to accept reasonable agency interpretations of the ambiguous statutes they administer. This deference assumes that Congress wants agencies, rather than courts, to fill the policy gaps it invariably leaves in its regulatory legislation.
Chevron’s congressional and judicial critics are united in their fear that such a broad delegation of policymaking power to agencies expands federal bureaucratic control in ways that endanger the American People and the rule of law. However, this broad agreement on the perils posed by Chevron belies consequential differences among the most prominent anti-Chevron critiques. Members of Congress have heavily relied on pragmatic considerations in proposing legislation to either scale back Chevron deference or eliminate it entirely. They conclude, as a practical matter, that the doctrine produces outcomes largely injurious to both their constituents and to our democracy. They nevertheless agree with one of Chevron’s axiomatic principles—Congress has the constitutional authority to choose the primary interpreter of its statutes.
By contrast, two Supreme Court Justices—Clarence Thomas and Neil Gorsuch—have expressed grave doubts about whether the Constitution leaves this choice to Congress. They instead have argued that the act of statutory interpretation is essentially a judicial one, assigned to the federal courts by Article III. Who ultimately wins this tacit conflict within the Chevron war—Congress’ pragmatists or the Court’s essentialists—will profoundly affect Congress’ capacity to shape the meaning of federal statutory law.
As indicated above, Chevron deference requires judges to give legal effect to an agency’s reasonable interpretation of the statute it enforces when that statute does not speak directly to the precise question at issue. Chevron’s animating assumption is that Congress, by leaving ambiguity in the statute, intended the administering agency to be its primary interpreter rather than the courts. The Supreme Court has expanded Chevron’s scope over the years in ways that give agencies even greater policymaking freedom. For instance, agencies now get deference when interpreting ambiguous statutes that set out the scope of their regulatory jurisdiction, and when they interpret their own ambiguous regulations (commonly referred to as Auer deference). Within limits, agencies may also re-interpret—replace their prior interpretations of—ambiguous statutes, even after a federal court has already accepted an older interpretation as reasonable. On the whole, Chevron and its progeny afford federal agencies substantial policymaking flexibility without any further Congressional legislation.
Chevron’s proponents argue that such delegations of policymaking authority are crucial to the proper functioning of modern government. Delegations made possible by Chevron and related doctrines help to make up for the fact that Congress is largely incapable of managing the country’s lawmaking needs by itself. It is plagued by collective action problems: a bicameral structure, diffusion of decision-making authority among 535 Members whose interests differ from those of the body as a whole, inter- and intra-party conflicts, Senate rules that permit obstruction by the minority party (or even by a single senator), and the supermajority requirement to overcome a presidential veto. All of this makes it difficult for Congress to reach agreement on clearly worded and comprehensive policies. By allowing important policy choices to be made by agencies instead of insisting that they always be made by Congress itself, delegation doctrines like Chevron allow the People’s work to move forward.
Chevron’s detractors in both Congress and the Judiciary deem these arguments insufficient to justify the doctrine’s existence, at least in its present form. Several conservative legislators, already troubled by what they view as the federal government’s intrusion into the lives of their constituents, have launched numerous legislative attacks on Chevron and its progeny. Rep. Bob Goodlatte’s (R-VA) opposition to Chevron deference has taken on an almost ritualistic quality; he routinely introduces bills for its elimination. Senator Orin Hatch (R-UT) and Rep. Mia Love (R-UT) have also entered the anti-Chevron arena, recently introducing bills of their own. While efforts such as these typically fall well short of acceptance by even a single chamber, one recent bill indicates that the anti-Chevron movement in Congress may growing in intensity.
The Separation of Powers Restoration Act of 2016 (“SOPRA”) passed in the House by a party-line vote (one Democrat voted in favor) during the 114th Congress. By amending the Administrative Procedure Act to require de novo judicial review of agency statutory interpretations, SOPRA purports to restore the “proper” power balance among the Branches of the federal government.
For the most part, SOPRA’s congressional supporters and their fellow travelers have advanced pragmatic arguments for ending Chevron’s judicial deference regime. They simply believe definitive statutory interpretation by courts will produce better outcomes than definitive statutory interpretation by agencies. Unlike the bureaucrats who continually misuse statutory interpretation to invest their personal policy preferences with the force of law, SOPRA’s supporters view judges as apolitical arbiters; they have no policy preferences to advance at the expense of those chosen by Congress, and they have no political axes to grind. Judges, to their minds, will properly limit themselves to locating and enforcing Congress’s intent. Their solution is legislation that directs judges to be the final word on all relevant questions of statutory meaning.
Importantly, and regardless of how much they may otherwise reflect revulsion for Chevron, pragmatic arguments implicitly accept one of its foundational ideas: Congress has the constitutional authority to choose the primary interpreter of its statutes. Chevron deference is animated by the assumption that Congress wants agencies, not courts, to make the policy decisions it has not made itself. The deference Chevron affords agencies wouldn’t be possible had the Supreme Court concluded that the Constitution does not grant Congress the power to make this fundamental choice; formulating pragmatic arguments for or against Chevron would be little more than an academic exercise. Clearly, SOPRA’s supporters, and others who would end the Chevron regime through legislation, do not believe they are engaged in an academic exercise.
Several Supreme Court Justices have likewise sounded the Chevron alarm bell, though the reasons underlying their agitation differ in constitutionally significant ways. Chief Justice Roberts has made clear his disapproval of Chevron’s expansion. Rather than simply assuming Congress intended for agencies to resolve all ambiguities in the statutes they administer, he has argued that courts should figure out whether Congress intended for agencies to resolve particular statutory ambiguities at issue in particular cases. Justices Kennedy and Alito agreed with him. See Arlington v. FCC, 569 U. S. 290 (2013) (Roberts, C.J., dissenting).
While this would certainly limit Chevron’s scope, it would leave the ultimate choice of definitive interpreter (courts or agencies) to Congress. In a subsequent concurrence he authored before leaving the Court, Justice Anthony Kennedy described as “troubling” the “reflexive deference” some lower courts give to agency interpretations. The target of his ire seemed to be some perceived intellectual laziness on the part of lower court judges, and not the more fundamental power of Congress to choose the primary interpreter of its statutes. Even Judge Brett Kavanaugh of the D.C. Circuit, whose nomination to the Supreme Court is currently pending before the Senate Judiciary Committee, has publicly criticized Chevron. But he has done so ways that would seem to preserve Congress’ ability to choose.
Echoing pragmatic arguments raised by SOPRA’s Congressional sponsors, Judge Kavanaugh thinks that Chevron encourages agencies to be unduly aggressive in how they interpret statutes. In other words, they try to force their own policy preferences onto a statute instead of looking for what Congress actually wanted them to do. He has also observed that Chevron has no apparent basis in, and actually seems to contradict, the language of the Administrative Procedure Act (“APA”). The APA instructs reviewing courts, not agencies, to decide “all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Despite these misgivings and preference for a narrower Chevron doctrine, Judge Kavanaugh has not gone so far as to say that Congress lacks the constitutional authority to choose agency interpretations over judicial ones.
Compare this to the anti-Chevron attacks launched by Justices Thomas and Gorsuch. Unlike Chief Justice Roberts, Justice Kennedy, Justice Alito, and Judge Kavanaugh, they do not believe Congress has the constitutional power to choose who interprets its statutes. They have instead taken an “essentialist” position which views statutory interpretation as an essential (and hence inalienable) aspect of the judicial function assigned to federal courts by Article III of the Constitution. In a well-known concurring opinion he authored while still a judge on the U.S. Court of Appeals for the Tenth Circuit, Justice Gorsuch lamented that Chevron and its progeny “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (Gorsuch, J., concurring). Justice Thomas harbors similar doubts about whether the Constitution permits courts to defer to agency interpretations of ambiguous statutes. For Justice Thomas, Chevron “is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies.” Michigan v. E.P.A., 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring).
For Justices Thomas and Gorsuch, finding a statute’s meaning is an integral part of deciding Article III cases and controversies, the task exclusively assigned to the Judiciary by the Constitution. The Judiciary’s responsibility prevents it from deferring to agencies; Article III assigns judges the more robust task of finding the definitive meaning of the statutes they interpret. This is a function courts must perform even as to genuinely ambiguous statutes, those for which there is no congressional policy choice to find through interpretation. In sum, the essentialists posit that Chevron, Auer, and similar interpretive deference doctrines improperly vest Congress with the authority to choose its preferred interpreter.
Presumably, Members of Congress would be loathe to accept so profound a restriction on their legislative power. They may not like what agencies typically do with the interpretive prerogative Chevron affords, but they almost certainly want to retain the flexibility to delegate that interpretive authority when they find it advantageous to do so. The essentialist position would make this at least very difficult, and in all likelihood impossible. If statutory interpretation is an inalienable aspect of deciding cases and controversies, even the clearest legislative language assigning the task to a non-Article III court would be struck down as unconstitutional. After all, and as Marbury v. Madison made pellucidly clear, Congress can’t revise the Constitution by passing a statute.
Members of Congress should be circumspect when proposing SOPRA-like reforms in any event, separate and apart from adopting the Court’s possible adoption of the essentialist position. It isn’t a forgone conclusion that the de novo judicial review of agency interpretations envisioned by SOPRA would foster greater fidelity to Congress’s policy preferences. Courts are largely immune to external pressures, and openly disdain efforts to influence them. Such hostility is entirely appropriate given the function courts perform in our legal system; their insulation from the political process allows them the freedom to decide cases based on legal merit, and not on the whims of electoral majorities, politicians, or interest groups.
Agencies, by contrast, can be influenced by legislative pressure. Through the give-and-take that characterizes formal and informal oversight, Congress can shape an Administration’s views on the policy issues delegated to them for resolution. Placing the policymaking currently conducted by administrative agencies behind a judicial firewall—based on either pragmatic or essentialist rationales—seems likely to substantially dilute the potential effectiveness of Congress’ oversight powers.
Additionally, Congress labors under profound procedural disadvantages when exercising its powers as compared to its co-ordinate Branches. Given the enormous damage to individual rights and liberties that the abuse of legislative power can cause, the Framers purposely made its exercise difficult. Those procedural impediments have only multiplied in the years since the nation’s founding; instead of securing majorities from the 91 Members seated by the end of the First Congress in 1791 (65 House Members and 26 Senators), legislative action must now be coordinated among almost six times that number. In short, SOPRA and similar efforts may endanger, rather than enhance, Congress’s influence over the post-enactment meaning of federal legislation.
At a minimum, the anti-Chevron boosters in Congress have a lot more to work out.