At Law & Liberty, John McGinnis: The Rise and Fall of Chevron. From the introduction:
The most important and frequently cited case in administrative law is Chevron v. NRDC—a case mandating judicial deference to legal interpretations by administrative agencies. This year the Court is likely either to overrule it directly or hollow it out significantly. The rise and fall of Chevron is a fascinating story both jurisprudentially and for me personally. As an intern in the Solicitor General’s office who worked on the Supreme Court brief for the government, I was present at its creation. Neither I nor, I believe, anyone else in the office had the slightest inkling that this case would have importance outside of the Clean Air Act, the statute that it concerned. It is often said that hard cases make bad law, but Chevron shows that obscure and seemingly unimportant cases can make epochal law.
Chevron is of even more enduring interest for what it says about the power of high-level jurisprudential concerns to shape concrete legal doctrine. Chevron’s language mandating deference to administrative agencies appeared and then became popular because judicial activism was the overriding concern of its era. After the excesses of the Warren Court, there was a widely shared fear that courts were substituting their own views for the law. At the Supreme Court level, the Warren Court was often thought to substitute its views of good policy for the law. In administrative law, however, the most frequent offender was thought to be the era’s District of Columbia Circuit which substituted its view of good policy and procedure for those of relevant federal agencies. Deference became the answer to administrative judicial activism. It was not coincidental that in Chevron, the Supreme Court overturned a DC Circuit decision below.
But over time jurisprudence itself changed. More judges became textualists in statutory interpretation and originalists in constitutional law. Formal analysis rather than policy became the exclusive stuff of law. If courts confine themselves to formalism, there is no reason to defer to agencies. Judges are the experts in squeezing statutes until they squeal their meaning. They are less biased when engaged in this formal enterprise than more politically beholden agencies with skin in the game.
Thus, while some commentators, like Harvard Professor Noah Feldman, have presented the likely overruling of Chevron as a malign attempt by the right to curb the administrative state while others have seen it as an ideological effort to empower the conservatism of a largely Republican-appointed judiciary, these charges are simplistic and does not accord with history. The right has long had doubts about the power and accountability of the administrative state. The courts have often had a majority of Republican-appointed justices and judges since Chevron was decided. What is new since 1984 is the rise of formalism and the confidence that formalism can deliver correct answers to complex questions of statutory interpretation. Moreover, overruling Chevron does not change the delegation doctrine, which remains the engine of the administrative state. Even if Chevron is overruled, Congress can still delegate ample discretion to administrative agencies. It is just that agencies will no longer get deference in interpreting what that discretion is.
I think this is generally correct, but I would say that a catalyst for the shift on Chevron has been agencies' increasing tendency to advance highly questionable interpretations in support of very aggressive claims of power. For that reason, I see the emergence of the major questions doctrine (which has drawn originalist and textualist skepticism) as aligned with, rather than in tension with, the decline of Chevron. The common thread is worry about aggrandizement of executive lawmaking power.
Posted at 6:02 AM