“Chevron Deference” In The Age Of A Captive Bureacracy

The concept made sense back in 1984, when the Supreme Court held in Chevron v. Nat. Res. Def. Council, that courts should defer to the expertise of administrative agencies in their reasonable interpretations of ambiguous laws. After all, Congress was enacting broad laws affecting highly technical aspects of industries and required a good deal of latitude on the part of agencies to use a level of knowledge and experience that judges didn’t possess and addressed the constant if routine application of law to changing circumstances.

But did that mean the National Marine Fisheries Service not only got to mandate that its observers be allowed on private fishing vessels to prevent over-fishing, but required that boat owners to pay its observers $700 per day for the pleasure? That $700 pretty much ate up the day’s profits, but why was this a cost to be shouldered by the boat rather than the government? Because the bureaucrats at the National Marine Fisheries Service said so.

 “Congress has delegated broad authority to an agency with expertise and experience within a specific industry,” Judge Judith Rogers wrote for the majority [of the DC Circuit], adding that “the court’s review thus is limited to the familiar questions of whether Congress has spoken clearly, and if not, whether the implementing agency’s interpretation is reasonable.”

It was, she wrote. “Although the act may not unambiguously resolve whether the service can require industry-funded monitoring,” she wrote, “the service’s interpretation of the act as allowing it to do so is reasonable.”

In the years since Chevron, politicians and activists realized that it was no longer necessary to win a majority in Congress to control the functioning of the American administrative machinery, but rather staff agencies with sympathetic bureaucrats and issue “guidance,” if not rules and regulations, and essentially reinvent the law to serve political ends.

It’s not that there are certainly areas where expertise is critically important, or where department heads don’t demonstrate the humility of faithfully applying the law in furtherance of Congress’ goals.

Wednesday’s argument featured a host of hypothetical questions. Justice Kagan asked who should decide, for instance, whether a product is a drug or a dietary supplement. The answer, she suggested, was an expert agency.

“It’s best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations,” she said. “And, you know, judges should know what they don’t know.”

However, other agencies, or elements within an agency’s discretion, are less dependent on expertise, or that there is a significant divergence in expert opinion and an agency leads a nation down a road of the bureaucrat’s choosing, even if no one in Congress voted for it and the bureaucrat is answerable to no one for her diktats.

“Agencies know things that courts do not,” Justice Elena Kagan said, “and that’s the basis of Chevron.”

Does Catherine Lhamon at the Department of Education Office of Civil Rights “know things” about Title IX campus sex tribunals that courts do not?* The primary argument against deference is that every change of regime opens the door to a wholesale change of regulation, as the agency is captured by one team or the other.

 Justice Brett Kavanaugh described how the doctrine’s effect is to cause “shocks to the system every four or eight years when a new administration comes in.” Justice Neil Gorsuch, whose mother once ran (and tried to destroy) the E.P.A., complained that regulations flip back and forth from one administration to another.

Roman Martinez, arguing on behalf of the parties who want to kill off the Chevron doctrine, picked up the thread. “Imagine if you’re a person or a regulated entity and you’re trying to figure out what the law is.”

Stability of the law is, of course, extremely important so that people can rely on its consistency, make decisions in reliance thereon and be assured that it won’t flip-flop in four years and leave them in an untenable position. Then again, this Supreme Court has failed to show much fidelity to stare decisis in Bruen and especially Dobbs, leaving it exposed to charges of partisan hypocrisy.

Then again, if it’s not left to agencies to do Congress’ bidding when it enacts vague laws directed toward some general purpose with the details left to bureaucrats to figure out and apply, reversal of Chevron would switch the administrative policy-making function to the judiciary.

Justice Ketanji Brown Jackson said Congress had given some policy choices to the agencies. “And my concern,” she said, “is that if we take away something like Chevron, the court will then suddenly become a policymaker.”

Much as we may not want captive-agency bureaucrats reinventing the law every four years, do we want judges making policy?

The justices were also concerned about whether a decision overturning the decision would give rise to countless challenges to earlier rulings under the doctrine. “Isn’t the door then open for litigants to come back?” Justice Barrett asked, adding, “Isn’t it inviting a flood of litigation?”

The Supreme Court hasn’t heard a Chevron Defense case in years, so the caselaw has been left in the hands of district and circuit judges. They can, and often do, split, such that leaving the administrative functioning of society upon which we depend to a shocking extent in the hands of judges could end up causing chaos as judges disagree and issues remain conflicted and unresolved.

Then again, as Lhamon told Sen. Alexander when asked who authorized her to impose her own personal Title IX fiefdom untouched by either court or Congress, “You did when I was confirmed.” This is where the administrative control of a nation stands today. We need administrative agencies or the nation will cease to function, but we need agencies run by humble experts rather than radical activists bent on abusing Chevron deference to own an industry.

*This is technically Auer Deference, as it applies to regulations rather than statutes, but the same concepts apply.

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