The Hill: No, Congress should not codify ‘Chevron deference’

December 20, 2021 | By ELIZABETH SLATTERY

Rep. Pramila Jayapal (D-Wash.) this month introduced the Stop Corporate Capture Act, which, among other things, would codify a legal doctrine known as “Chevron deference” that requires judges to defer to federal regulators’ interpretation of the laws they are charged with carrying out. Chevron deference is a misguided doctrine that several members of the Supreme Court seem eager to limit or eliminate. Congress mandating Chevron deference would allow the administrative state to aggrandize power in violation of our Constitution’s carefully delineated separation of powers. Not only would that be a terrible policy, but it’s also likely unconstitutional for Congress to direct judges to abandon their judicial independence and exercise systematic bias toward the government.

Jayapal’s justification for her bill is actually a strong argument against it. At a recent U.S. House Judiciary subcommittee hearing on agency rulemaking and accountability, Jayapal explained, “Many Americans are taught in civics class that Congress passes a law and that’s it. But the reality is that major legislation enacted by Congress … must also be implemented and enforced by the executive branch to become a reality. To do that, federal agencies go through a process of administrative rulemaking or the creation of regulation that enforces the law.” She continued: “Unfortunately, this has turned into a shadowy process where special interests and big corporations send a bevy of lobbyists to make sure that the rules benefit them. There’s limited transparency or accountability in the creation and enforcement of regulation…”

The congresswoman is right that lack of transparency and accountability are key problems with the administrative state. After all, federal bureaucrats are not elected, yet they have the ability to issue regulations with the force of law. So while Jayapal has identified a real problem, her proposed solution — which includes codifying Chevron deference — would give agencies even more power.

The Supreme Court’s now controversial 1984 ruling in Chevron v. Natural Resources Defense Council requires judges to defer to an agency’s “reasonable” interpretation of ambiguous statutory language, even when there is a better interpretation. When an agency’s actions or authority are challenged in court, it should not receive special treatment. But that is precisely what Chevron deference requires: When judges defer to agencies, they are putting a thumb on the scale in favor of one litigant (the government) over others (Americans). That subverts the adversarial system of adjudication that has been central to Anglo-American legal tradition for centuries and violates judges’ duty to render independent, impartial judgments. And Chevron is just one in a series of judicial deference cases that stack the deck in favor of the government at the expense of Americans who become trapped by the administrative state.

Reform is in the air, however, as Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito and Neil Gorsuch have called into question the wisdom and constitutionality of these deference doctrines. For example, in a 2016 concurring opinion in Gutierrez-Brizuela v. Lynch, then-Judge Gorsuch famously pointed out that in a world without Chevron, “The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is.” These justices would have done away with Auer deference (a doctrine that requires judges’ deference to an agency interpretation of its own rules) in a 2019 case, while the majority of the court severely limited the doctrine but ultimately upheld it. As Gorsuch wrote, that ruling was “more a stay of execution than a pardon” for Auer and other deference doctrines. And the Supreme Court is currently considering a challenge to Chevron this term in American Hospital Association v. Becerra.

Chevron and the administrative state have their defenders, who claim that today’s problems are too complex for Congress to address with simple legislation. In their view, we need expert administrators to sort out our problems without adhering to the outdated formality of the Constitution’s separation of powers. And because judges don’t have the technical, specialized expertise of federal bureaucrats, they must defer to the agencies. At the recent House hearing, University of Texas law professor Wendy Wagner explained that Chevron keeps “courts [from] meddl[ing] with political decisions” and that “[a]s the courts give less and less deference to agencies, we’re going to see … rules come even slower, less protection of the public health.”

Another witness, Jennifer Mascott, a law professor at George Mason University, pointed out Chevron “creates a bit of a conflict of interest … because the agency carrying out the power is then responsible for determining its scope” and should be “eliminated on questions of law.” Chevron does more than just create a conflict of interest. It leads to the consolidation of power in one branch of government, which is precisely what the Founding generation sought to prevent and what James Madison proclaimed “the very definition of tyranny” in Federalist No. 47.

Instead of seeking to insulate federal bureaucrats from the scrutiny of independent judicial review, members of Congress should take steps to reassert their primacy as lawmakers and ensure the federal bureaucracy is accountable to the people. Adopting reforms such as the Separation of Powers Restoration Act, which would supplant Chevron deference and require judges to decide “all relevant questions of law” in challenges to agency action, or the Regulations from the Executive in Need of Scrutiny (REINS) Act, which would require congressional approval of regulations with an impact of $100 million or more, would go a long way toward shifting power away from the administrative state and back where it belongs.

Jayapal and other members of Congress should not be quick to give away their lawmaking power, and neither should they attempt to take away judges’ ability to act as neutral, independent adjudicators in disputes between the administrative state and Americans.

This op-ed was originally published by The Hill on December 20, 2021.