Will the Supreme Court End Chevron Deference—and Restore Responsible Lawmaking?

In two back-to-back hours-long hearings this morning, the U.S. Supreme Court justices debated one of the biggest questions in contemporary constitutional law: to what extent should courts “defer” to the legal views of officials to operate the nation’s bureaucratic agencies? Under a 40-year-old precedent called Chevron USA v. National Resources Defense Council, federal courts have typically yielded to the opinions of these agencies when a case involves the interpretations of statutes, as long as those opinions are “reasonable.”

That rule—called “Chevron deference”—was originally intended to prevent judges from imposing their own political views in the guise of legal interpretation. But in practice it has proved a boon to government regulators, who use this “deference” theory to expand their powers, freed from judicial checks and balances. In today’s two cases, lawyers for businesses affected by a vague federal statute urged the justices to overrule the Chevron precedent and restore the age-old rule that judges, not unelected bureaucrats, are in charge of interpreting the law. That’s why the Goldwater Institute filed a brief urging the court to end the Chevron principle once and for all.

Today’s arguments were long and involved some of the most interesting and complicated legal disputes in America today, but they ultimately boiled down to two competing visions of the role that these bureaucracies play in our lives. The left wing of the court, led by Justice Elena Kagan, view agencies as groups of “experts” who understand complicated scientific and technical issues better than judges do, and who therefore should enjoy broad authority to implement federal power. The conservative wing, which in this case was led by a longtime Chevron critic, Justice Neil Gorsuch, views this deference idea as a dangerous undermining of constitutional limits on government—one that expands the power of bureaucracy and actually makes the law less clear in the long run. This is due to the fact that each new presidential administration implements its own view of the law, often contrary to the views of the previous administration.

Perhaps the most troubling part of the deference theory that it expands the power of agencies but minimizes their accountability to the people. In theory, our Constitution is supposed to ensure that government is responsive to the public. But what actually happens is that lawmakers adopt laws with broad, even incomprehensible terms—and then let agency bureaucrats fill in the blanks. For example, the law at issue in today’s two cases allows bureaucrats to “prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery.” Such extremely broad wording is really just a blank check on power—one of thousands that Congress has handed out to agencies, enabling them to write the rules, investigate infractions of the rules, and punish people for violating the rules, in violation of the principle of separation of powers.

Yet that problem did not seem to faze Justice Kagan, who—in one of the more astonishing moments of today’s arguments—claimed that agencies actually are “accountable” to the public, despite not being subject to elections, because the voters can always elect a new president who can change the personnel running the agencies. That, however, seems strikingly naïve in light of experience—which shows that life-tenured bureaucrats are often quite adept at preventing reforms, even when demanded by the White House. And in any event, such a view clashes with the whole constitutional scheme, which contemplates the law being made by elected representatives, enforced by the president, and adjudicated by courts—not made, implemented, and adjudicated by hired bureaucrats.

What about agency “expertise,” though? Justices Kagan and Ketanji Brown Jackson revealed a remarkable faith in these alleged experts, insisting that technical questions (for example, whether a new medical treatment should be classified as a “drug” or a “dietary supplement” under federal law) should be decided by scientists, not judges. To that point, attorney Roman Martinez had the perfect answer: “imagine that that statute came to a court before an agency had even acted in the first place,” he said. “What would a court do? Would a court……say: Well, this is hard, it’s sort of 52/48; it’s kind of close; I think the law has ‘run out’ and I’m just not going to be able to decide this? [No,] I think the court would go with the best interpretation.” To that, Kagan was forced to agree: “the court in that case would have to make a choice.”

But if a court can make that choice in that case, then why in the world should it refuse to make that choice when an agency has spoken? After all, an agency interpreting a statute is not applying “scientific” factual technical knowledge any more than a judge is, in an ordinary lawsuit. They’re doing exactly the same thing: interpreting a law. And over two centuries ago, Chief Justice John Marshall famously said that “it is emphatically the province and duty of the judicial department to say what the law is”—the judiciary, not some executive branch agency.

On that point, Justice Jackson seemed flummoxed. “So every statutory interpretation question is one of law that a court can decide, you’re saying?” To that Martinez rightly answered yes—of course it is. That’s always been the courts’ job. Yet Justice Jackson went on to offer a response that essentially argues for the abolition of the judiciary itself: “You say the courts will sort [legal questions] out,” she told Martinez. “Well, first of all, it will take years, perhaps, for the courts to sort it out…. And different courts from all of these different jurisdictions could actually have a different view…of what [a law] means. So isn’t it sort of impractical and chaotic to have a world in which every undefined term in a statute is subject to litigation…?” But of course, that’s already the world we live in—one with many different judges, who often disagree about important legal matters. If that’s “impractical” or “chaotic,” then that’s an argument for shutting down the entire judicial system.

But there’s no reason to believe chaos would result. As we explained in our brief—mentioned by Justice Brett Kavanaugh during the hearing—several states have eliminated their own deference rules, and there’s no reason to believe that these states are worse off as a result. On the contrary, the result has been better accountability and more responsible policy-making by the people’s elected representatives. In Arizona, for example, where the state adoptedour model legislation requiring courts to apply non-deferential analysis when interpreting the law, there’s been no “chaos” or “impracticality”; on the contrary, the state has been able to preserve public health and safety—while better respecting the rights of Arizonans.

Unsurprisingly, it was Justice Gorsuch who honed in on the real victims of the deference rule. Chevron, he said, will

sometimes favor industries that are regulated and sometimes favor the government, and I can certainly see that in scenarios when we talk about the flip-flop of administrations…[and] I don’t worry in a Chevron regime about those people. They can take care of themselves, okay…? The cases I saw routinely on the court of appeals…are the immigrant, the veteran seeking his benefits, the Social Security Disability applicant, who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote, generally speaking…. Chevron has this disparate impact on different classes of persons…. The government always wins…. There are many instances where Congress didn’t think about [the legal question at issue in a lawsuit]. And in every one of those, Chevron is exploited against the individual and in favor of the government.

That’s exactly correct—and that’s why so many states, notably including Arizona, have abolished their own state-level versions of Chevron deference.

In the second of the two cases, lawyer Paul Clement made the point even clearer: the problem with Chevron isn’t just about figuring out legal ambiguities. The problem is that the Chevron rule encourages Congress to create ambiguities. The basic assumption of Chevron, he said,

[is] that when there’s silence or ambiguity, we know [Congress] wanted to delegate to the agency. That is just fictional…[A]mbiguity is not always a delegation. And more often, what ambiguity is, I don’t have enough votes in Congress to make it clear, so I’m going to leave it ambiguous, that’s how we’re going to get over the bicameralism and presentment hurdle, and then we’ll give it to my friends in the agency and they’ll take it from [there]. And that ends up with a phenomenon where we have major problems in society that aren’t being solved because, instead of actually doing the hard work of legislation where you have to compromise with the other side at the risk of maybe drawing a primary challenger, you rely on an executive branch friend to do what you want…. [Major issues] don’t get addressed [by Congress] because Chevron makes it so easy for them not to tackle the hard issues and forge a permanent solution.

This is one of the most important problems with what we call the Administrative State: it shields lawmakers from the responsibilities of lawmaking, while retaining the illusion of democratic decision-making. The result is to create a ratchet that always turns in favor of more and more government, against the individual. That’s precisely why the founding fathers warned about what the called the “mutability” of government: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood,” wrote James Madison, “or [if they] undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.”

By empowering bureaucrats—who are not, in any meaningful sense, accountable to the American people—to make law, Chevron deference gives politicians a way to take credit for the good, evade blame for the bad, and never have to buckle down to the work of actually governing. That’s bad for democracy, and it’s bad for the rule of law.

It’s time for the federal government to follow the lead of the states that have abolished their own deference doctrines, and to ensure that the courts do what is “emphatically their responsibility”—to interpret and apply the law, within the boundaries of the Constitution.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.