Class 11, 12 & 13 Chevron and Friends
Read part before Thursday, October 3rd, and part before Tuesday, October 8th.
Funk reading assignments: For class 11, read pp. 143-155. For classes 12 and 13, read pp. 378-385
Supplemental Reading: CRS reports explaining Chevron deference:
Chevron Deference: A Primer (skim - review and extra clarification of Chevron rule if needed)
It's no exaggeration to say that the Chevron doctrine is the hottest topic in administrative law. We will spend the next three classes learning about the two steps of the Chevron test and discussing the cases before and after the Chevron decision that have expanded and limited the deference that courts give to agencies when agencies interpret ambiguous statutory provisions.
One reason Chevron deference is such a divisive topic is that legal experts disagree about which government entities should be interpreting statutes: agencies or courts. Some (including the Trump administration according to this NYTimes article), believe that limiting Chevron deference is key to "shrinking the administrative state."
Potential Supreme Court Justices have been assessed, in part, on the basis of their opinions about Chevron deference. The two most recent Supreme Court picks, Gorsuch and Kavanaugh, favor stepping away from the Chevron test. In Gorsuch's concurring opinion in Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142 (2016), Gorsuch wrote that Chevron allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power.”
Similarly, before his appointment to the Supreme Court, Kavanaugh adopted the "major rules" doctrine used by Justice Roberts to justify judicial intervention in statutory interpretation when "major rules" are at issue. See King v. Burwell (Class 11). In 2018, Kavanaugh told the Senate Judiciary Committee, “I’m not a skeptic of regulation at all. I am a skeptic of unauthorized regulation, of illegal regulation, or regulation that’s outside the bounds of what the laws passed by Congress have said. And that is what is at the root of our administrative law jurisprudence.” Interestingly, Justice Scalia was a strong defender of the Chevron doctrine, but he focused on a "robust" use of the Chevron test 'step one.'
We will see that opinions about Chevron deference may vary based on who is making the administrative decisions and how government administrators are interpreting ambiguous statutes.
The Congressional Research Service has drafted a "legal sidebar" exploring the history and future of the Chevron doctrine. The researchers conclude that, while we cannot predict future Supreme Court decisions, recent cases suggest that the Court might continue to reaffirm Chevron, narrowing the circumstances where it applies rather than getting rid of it entirely. The Court may do this by resolving Chevron at its first step (finding Congress was unambiguous in the statute at hand) so that the Court needn't get to the deferential second step (evaluating whether the agency's interpretation of the statute is permissible).