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Agencies Courting Favor—or, Courts Favoring Agencies

eye on the news

Agencies Courting Favor—or, Courts Favoring Agencies

A fascinating new study documents the impact of judicial “deference.” August 9, 2016
Politics and law

Congress rarely devotes attention or energy to investigating esoteric doctrines of administrative law. But in the last year, amid the Obama administration’s ever more aggressive assertions of regulatory power in lieu of legislation (or in defiance of it), Congress has increasingly questioned one of the bedrock legal doctrines undergirding the modern administrative state: Chevron deference.

The Chevron doctrine, named for a 1984 Supreme Court case, directs federal judges to defer to federal agencies’ “reasonable” interpretations of ambiguous statutes. Unless the statute clearly decides the issue in a case (as statutes rarely do), the courts will largely let the agency’s interpretation stand. Chevron deference was once lauded as a victory for the Reagan administration, which fought hard to overcome liberal judges’ attempts to block its regulatory reforms. Today, however, conservative lawyers largely blame Chevron for facilitating the Obama administration’s turbocharged regulatory efforts. The reconsideration of Chevron is part of a broader conservative critique of the courts’ failure to check executive overreach. Philip Hamburger, who wrote a book-length denunciation of administrative law as unconstitutional, speaks for many when he characterizes Chevron deference as “Chevron bias.” Supreme Court Justice Clarence Thomas has taken up these themes in his own widely read judicial opinions criticizing the modern administrative state as constitutionally illegitimate.

Now Congress is taking interest, in a series of hearings questioning the constitutionality and practicality of Chevron, and considering legislation to reform or even abolish it. (I testified at a recent House Judiciary subcommittee hearing, taking no position on Chevron but applauding Congress for finally engaging the issue.) The debate reached a crescendo last month, when the House passed “The Separation of Powers Restoration Act” to abolish Chevron. The Act would direct courts to interpret statutes de novo—that is, with no deference to the agencies.

Wherever one stands on these issues, everyone can learn from a new study, “Chevron in the Circuit Courts,” by law professors Kent Barnett of the University of Georgia and Chris Walker of Ohio State. Barnett and Walker conduct an exhaustive review of how the federal appellate courts have applied Chevron. While other legal scholars have attempted quantitative studies on a smaller scale, Barnett and Walker went to unprecedented lengths to build a comprehensive data set.

Their findings (which Marcia Coyle summarized in the National Law Journal) are fascinating. Rejecting the argument that Chevron deference doesn’t make a big difference in agency cases, Barnett and Walker find that agencies are 25 percent more likely to win cases when the courts apply Chevron instead of de novo interpretation. The study also found significant disparities among the federal judiciary’s regional appellate courts. Federal agencies litigating in the First Circuit (New England) won 83.1 percent of their cases, while those litigating in the Ninth Circuit (the Western states) won just 65.5 percent of theirs. In the D.C. Circuit, the nation’s most powerful regulatory court, agencies won 72.6 percent of their cases.

The new research follows Walker’s 2014 study of the extent to which agency officials rely on Chevron and other doctrines in the rulemaking process. Specifically, Walker found that agency officials recognize how powerful a tool Chevron is, and they make the most of it.

Chevron’s constitutional and practical merits are very much a matter of reasonable debate. Congress deserves credit for engaging the issue, instead of leaving it to the courts. And Barnett and Walker have done yeoman work in bringing light to a hugely consequential but underpublicized subject.

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