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Notice And Opportunity To Be Heard

At Volokh Conspiracy, Jon Adler provides four “concerns” about what has become of Chevron Deference, the doctrine that courts should defer to the “expertise” of federal agencies executing the law.

First, in practice, Chevron is often used to uphold agency interpretations that have little to do with allowing agencies to exercise their delegated authority to make policy judgments based upon agency expertise.

Second, despite Supreme Court decisions suggesting that ambiguity alone is insufficient to trigger Chevron deference, lower courts often fail to engage in any meaningful “step zero” analysis in order to make sure that Congress had delegated the relevant authority to the agency. Instead, Chevron has become an excuse for courts to abdicate their responsibility to resolve legal questions in favor of agencies.

Third, as highlighted in the various recent major questions cases, agencies increasingly view Chevron as a license to go on a scavenger hunt for plausible statutory authority to implement policies favored by the executive branch, whether or not such policies have been authorized by Congress. Put another way, rather than facilitating the ability of agencies to faithfully execute the law Congress enacts, Chevron is used to enable agencies to go their own way.

A fourth concern, most acute in areas in which agencies make policy through adjudication (as in immigration and labor policy) is that agencies are able to change their interpretations–and thus change the applicable law– without going through the sort of open and deliberative rulemaking process that ensures those who will be subject to the rule have notice and an opportunity to be heard.

The fourth concern, that agencies commonly skirt the Administrative Procedures Act by issuing “guidance” rather than making rules subject to notice and hearing, is accurate. And yet, even that has become a  game to captive bureaucracies, as reflected by the Department of Education’s Office of Civil Rights announcement that it will finally impose new rules to flip the DeVos Title IX rules that required schools to comply with the law and require due process.

There is nothing new or surprising about this. It was clear from the moment President Biden appointed Catherine Lhamon to head OCR that she would undo the law and redo it in her own image, although this time she would have to go through the rigor of Notice and Comment under the APA rather than just issue diktats from on high as she did before.

The highly anticipated regulation is expected to unravel much of former Education Secretary Betsy DeVos’ Title IX rule, a defining aspect of her tenure. Her rule, which took effect in August 2020, narrowed the definition of sexual harassment and directed schools to conduct live hearings with cross-examination for sexual misconduct investigations.

Mind you, the “DeVos” definition of sexual harassment was actually the Supreme Court’s definition, as opposed to Lhamon’s definition, which is that sexual harassment is whatever a woman decides it is. As for live hearings with cross, whoever heard of such an outrage? But I digress.

When Betsy DeVos established her rules, they were subject to notice and comment as the law requires. To undue rules, Lhamon was constrained to also subject them to notice and comment. And therein lies the rub. So what? Just as with factfinders on campus sex tribunals, it presumes an open-minded, possibly even impartial, decision maker who is willing to consider opposing views and has a desire to craft rules that accomplish whatever task is at issue.

Lhamon didn’t care enough about anyone’s opinion but her own when she sent out the “Dear Colleague Letter” or subsequent guidance. She was an ideologue who sought power to impose her will through bureaucratic fiat. And frankly, she was neither shy nor ashamed of it. She had an ax to grind and she ground the crap out of it.

So now the official channels at the Office of Civil Rights have been filled with comments about reversing the Rules that went into effect in 2020, although most colleges have ignored them knowing that OCR, having changed hands hat year, would never enforce them. And now we have a process, notice and comment, which will give the new rules a shiny gloss of official approval even though Lhamon couldn’t care less what anyone had to say about her rules. She knew what she wanted to get done and she did it, comments be damned.

In the very thoughtful concerns expressed by Jon Adler, he presupposes that the bureaucracy may not be making decisions based on expertise, and even that the bureaucrats making the decisions may not be experts at all, but political hacks or radical activists handed the keys to the government without any meaningful oversight absent judicial scrutiny. And in some cases, this is indeed the case.

But as the experience with Lhamon shows, not all bureaucrats execute their responsibilities in good faith. The concept of meta, the application of which has already wreaked havoc with so many aspects of society, applies as well to government by bureaucracy. Without fear of a court ready to smack down activist use of federal agency power, bureaucrats are untouchable.

And even judicial review rather than deference isn’t much of a counterweight to agency activism, since it requires people to sue and years for a decision, with people suffering the bureaucrats’ unfettered will in the meantime. And even when the bureaucrat loses, there is no penalty to be suffered. They just come up with a new trick to circumvent the law, impose their will yet again and wait and see if anyone sues.

Notice and comment would be a fine requirement if activist bureaucrats cared what anyone else has to say. Otherwise, they’re just meaningless hurdles to jump over on the way to unfettered administrative control.

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