Why the hell would I bother to give deference to a damn evil oil (pronounced ohl) company? Well, Chevron deference has very little to do with oil, and nothing to do with genuflecting to a multi-national molester of Gaia. Chevron deference refers to the measure of how much a court should defer to an administrative agency’s interpretation of an ambiguous statute when a case hinges on the ambiguity.
As a trivial made-up example, let’s say that an employment law states that the “most senior” employee in a department is entitled to wear a crown in the office, enforceable by the NLRB. (yes, it’s a stupid example… so sue me) The NLRB creates regulations about what a crown is, what wearing a crown means, how to break seniority ties, etc. Of interest to us is the fact that the phrase “most senior” is left ambiguous by the statute. “Most senior” may be interpreted to mean oldest by age. “Most senior” may also be interpreted to mean the longest tenure at the company. Assuming that there is no clear statutory guidance to resolve that ambiguity, it’s up to the NLRB to determine what “most senior” means as they enforce the statute. The NLRB creates a regulation stating that “most senior” is by age. Years later, Sandy, an employee of Top Hats R Us files a complaint with the NLRB about the company’s blatant violation of the crown law. The NLRB sues Top Hats R Us for violating the crown law. Top Hats R Us rebuts by asserting that they followed the crown law. They provided the crown to Latitia, who has the longest tenure at Top Hats R Us. The NLRB counters back that “most senior” means oldest, not longest tenured.
The court is placed in an interesting bind. How do they interpret the statute? Perhaps the court is inclined to agree with Top Hats R Us that “most senior” means longest tenured. Perhaps there’s some weight to be given to the NLRB’s interpretation of the statute given their administrative role. In Chevron v. A bunch of Hippies, the SCOTUS answered this question once and for all (lol).
If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
Well, this may seem like a pretty easy decision for a libertarian. Either an agency gets to define the terms, or the people get a say in the interpretation of the terms. This takes some of the power out of the hands of the government. It’s very easy to over simplify the libertarian view on Chevron deference as “bias toward the agency means bias toward big government.”
However, this line of thinking is wrong! Chevron deference is a separation of powers issue that requires a deeper analysis than a superficial “government bad”drive-by. If you view Chevron deference in the lens of administrative agency v. private citizen, you’re already heading down the wrong path. Chevron deference is about establishing the border between the executive branch and the judicial branch. It’s not overreaching administrative agency v. abused private citizen. It’s overreaching administrative agency v. overreaching activist court. This is Marbury v. Madison type stuff. Ilya Somin writes:
As a general rule, deference to agencies tends to promote a pro-regulatory agenda, whether of the right or of the left. But there are notable cases where it might instead promote deregulation. It is worth remembering that Chevron itself deferred to a Reagan-era agency EPA policy that liberals thought did not regulate industry stringently enough. The plaintiff challenging the agency was the Natural Resources Defense Council, a prominent liberal environmentalist group. Ironically, Neil Gorsuch’s mother, Anne Gorsuch Burford, was the EPA administrator at the time the lawsuit began. The fact that his mother’s agency ultimately won the case evidently has not prevented Gorsuch from wanting to overrule it.
The separation of powers argument against Chevron deference is a strong one. Critics claim that the judicial branch unconstitutionally abdicates its judicial power when it defers to an administrative agency. Somin explains:
Article III of the Constitution gives the judiciary the power to decide “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” Nowhere does the Constitution indicate that federal judges are allowed to delegate that power to the president or to the bureaucrats that work for him in the executive branch.
The legislature makes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws. To be mixing and swapping these powers between branches is to undercut the fragile balance crafted by the founders. Cutting down to the core issue at hand, when the enforcement power of the executive branch requires some minimum amount of interpretation of the statutes that it enforces, how much of that interpretation is covered under the umbrella of the enforcement power, and how much is subject to reinterpretation by the judicial branch using their interpretation power? Justice Gorsuch has a very simple answer… all of it is subject to reinterpretation. This seems on first blush to be a fairly obvious statement. Where a branch is, by necessity, stepping on the toes of another branch, it would seem obvious that the other branch would have power to override the decisions of the overreaching branch. Chevron runs against that simple principle, thus Chevron is bad law.
Well, you may ask, how is this even a controversy? It seems fairly cut and dried. It’s not.
The Court [in Chevron] gave three related reasons for deferring to the EPA: congressional delegation of authority, agency expertise, and political accountability.
Chevron itself involved a decision of the Environmental Protection Agency, an executive branch agency. With regard to executive branch agencies like EPA, or, say, the Departments of Commerce, Labor, or Transportation, it may be natural, as Justice Stevens did, to refer to the “incumbent administration” and to invoke the chief executive’s direct accountability to the people.
But not so with the so-called independent agencies like the FCC, SEC, FTC, or the NLRB, with their potent brew of combined quasi-executive, quasi-legislative, and quasi-judicial powers. Unlike the single heads of executive branch agencies who may be terminated at will by the president, the independent agencies’ members serve fixed, staggered terms. And the prevailing view is that they may be fired by the president only for good cause.
There are strict rules for holding agencies politically accountable, especially the independent agencies. The President, on a whim, cannot clean house at the EPA or the SEC. These bureaucrats may be even more fully insulated from the political winds than the judicial branch… a branch set up to specifically be insulated from politics.
Quickly addressing agency expertise, I’ll say that as a person who has to deal with an expert agency on a daily basis (the USPTO), agency expertise is vastly overrated. If you trust the cop pulling you over to know his 4th and 5th Amendment jurisprudence, then maybe this “agency expertise” thing works for you, but for those of us in the real world, it’s laughable that the bureaucrats at these various alphabet soup agencies could be called “experts.”
Another motivation discussed by the case was Congressional delegation. Can Congress even delegate their lawmaking authority? Is that Constitutional? Facially, no:
The non-delegation doctrine, grounded in the separation of powers, arises from the very first word of the Constitution, after the Preamble: “All legislative Powers herein granted shall be vested in a Congress of the United States ….” (emphasis added). Taken at face value, that clear a statement would seem to preclude much of the “lawmaking” that goes on every day in the 300 and more executive branch agencies to which Congress over the years has delegated vast regulatory authority.
However, FDR, riding on the coattails of Woody “The Real Lizzy Warren” Wilson and Teddy “Bloodthirsty Sociopath” Roosevelt (go read about them), did a number on the Constitution with his judicial intimidation tactics, including the non-delegation doctrine. Hell, how are these independent, legislatively controlled executive administrative agencies allowed to exist? Well, when you scratch the paint away, you’ll find a “living Constitution” argument:
[This idiotic law review article] contends that the Founding Fathers made the Constitution flexible enough to meet administrative exigencies and did not intend to leave the enforcement of all laws to the President
So to go back to the beginning. Yes it is the old ‘private island’ thought experiment, but with a small change. It’s not an Island, but any place on earth where the first humans were the first intelligent beings to move to (that intelligent beings bit will come back on my promise of why they are human rights). Ug shows up with his sharp stick and his loin cloth in lower Mongolia. When he gets there what does he own? Well, of course he owns his own body, he is a slave to no man, and ownership of everything else extends from his self ownership. And that sharp stick, he found it and chewed it for miles to sharpen it. The loin cloth, well he stole that, so that’s a bit more complicated on the ownership front. So he arrives in lower Mongolia and there is nothing there. There is like this one pissed off falcon circling overhead and Ug saw some wild dogs a hundred miles ago. But that’s it. So Ug decides he’s tired of roaming sits his ass down and says ‘shit, fuck this Ug build himself house!’ There aren’t many trees around, but Ug finds enough to build a frame for a rough stone age yurt. He then hunts enough animals and tans enough leather to to finish his new domicile. Ug found some wild grains and harvested the seeds, carefully planting them and tending to his new garden. Then a wild goat shows up, he grabs it and builds a nice pen. The goat provides him with milk to make up for the absence of an accessible source of water. Months pass and Ug has made a nice little home for himself. Then that asshole Ur shows up.
The second consideration is whether the law is going to work. Too often people demand laws because they don’t like something or consider something awful, and assume the legislative process is a magic wand to make the world be the way they want. But it isn’t. And that kind of magical thinking is how we wound up with the wonders of organized crime during Prohibition and the glories of our modern War on Drugs. Generally, trying to ban something that’s wildly popular is a pretty sure recipe for massive flouting of the law. It’s not a perfect guideline, but, if you already have a bunch of laws on the books about something, one more probably isn’t going to do the trick. The benefit you see of a law should be weighted by the probability of the law actually working.
