by Michael Dorf
In my latest column for Verdict, I analyze Judge Gorsuch's argument--laid out in a concurring opinion in his own majority opinion in Gutierrez-Brizuela v. Lynch--against the doctrines of Chevron and Brand X whereby courts defer to reasonable agency interpretations of statutes they are charged with enforcing. As I explain in the column, I find Judge Gorsuch's argument unpersuasive. I also note the curiosity that it is at odds with a position espoused most vigorously by Justice Scalia (although Scalia backed off a bit late in his career).
In the column I suggest that the particular argument Judge Gorsuch offers against Chevron and Brand X would, if accepted, lead to the hobbling of the administrative state--mostly because it implies revival of a robust nondelegation doctrine. A Congress that cannot delegate is a Congress that cannot regulate effectively.
However, elimination of Chevron and Brand X need not necessarily be accompanied by a revived nondelegation doctrine. If justified on some other ground, courts could in principle uphold broad delegations of authority to administrative agencies even while denying deference to agency rules and other interpretations of statutes. I would oppose such a change as unwise, but I would not say that it would necessarily spell doom for administration.
It is notable that, as Professor Klein noted in her post on Gutierrez-Brizuela last week, alongside Judge Gorsuch's principled argument for killing Chevron/Brand X there has arisen a movement on the right to do the same thing and more. A bill to that effect recently passed the House, although its fate in the Senate remains uncertain. It is clearly part of a politically conservative attack on the administrative state.
These events raise the question whether Chevron deference is inherently liberal or contingently liberal. If either is true, that would explain why eliminating it is a project of the right. But as I shall now explain, the political valence of Chevron deference is tricky to figure out.
At first blush, the answer would appear to be easy: During a Democratic administration, Chevron deference is liberal; during a Republican administration, it is conservative. Yet that obviously cannot be the thinking of the members of Congress who voted on the bill to eliminate Chevron deference. All Republicans voting favored it while all but five Democrats opposed it. If the stakes were simply whether the courts should defer to the current Republican administration, one would have expected those numbers to be reversed. Accordingly, we should explore the possibility that Chevron deference necessarily skews liberal.
The simple-minded argument for that conclusion is that Chevron deference allows agencies to regulate more effectively and so Republicans with a deregulatory bias oppose Chevron. But this is not obviously so. In the Chevron case itself, after all, the Court deferred to the Reagan administration's deregulatory regulation under the Clean Air Act. And this will often be the case. Deference can as easily be given or denied to regs that are stricter than the construction a court would give a statute if considering the matter de novo as to regs that are laxer.
So what gives? Consider two possibilities.
First, it is possible that some or most members of Congress voted as they did on H.R. 5 (the Regulatory Accountability Act of 2017) because of the other provisions it contains. Chevron went along for the ride.
Second, although there is no systematic reason why deference would more often be given to strict agency interpretations than to lax ones, the litigation pattern could well be different. Under the Court's standing doctrine, it is quite easy for a regulated entity to complain about what it regards as too-strict regulation by an agency. However, a party claiming that the agency is under-enforcing a law with a too-lax regulation will sometimes face difficulty establishing standing. Indeed, in Lujan v. Defenders of Wildlife, Justice Scalia, writing for the Court, argued that a person complaining about under-enforcement of the law against a third party threatens "to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed' . . . ."
To be sure, that was hyperbole in Lujan. Taken seriously, Justice Scalia's complaint in Lujan would have disempowered Congress from granting a right to sue even to people who clearly suffer Article III injuries as a consequence of non-enforcement, because the injury inquiry is orthogonal to the Take Care Clause concern. Moreover, Justice Kennedy's concurrence in Lujan was pivotal and looked more favorably on complaints about under-enforcement than did the majority opinion (which he nonetheless joined). That fact takes on greater significance since Massachusetts v. EPA essentially read Kennedy's Lujan opinion as controlling, thus rendering it so.
But these qualifiers notwithstanding, it probably remains true that challenges to agency regulation will be more frequent than challenges to agency laxity or failure to regulate. In addition to the Article III standing limits, there is also the fact that under the Administrative Procedure Act as construed in Heckler v. Chaney, decisions not to pursue enforcement actions generally are not reviewable.
Accordingly, insofar as regulation and over-regulation will generally be more subject to review than non-regulation and under-regulation, deference to agency action will more often than not mean deference to agency regulation and (from the perspective of a de novo court) over-regulation. Thus, there seems to be at least some basis for the conclusion that Chevron skews liberal.