Judge Ka­vanaugh and the ‘Chevron def­er­ence’

It will likely play a role in the bat­tle ahead be­cause of how it ex­pands the ad­min­is­tra­tive state

The Washington Times Daily - - OPINION - By Ran­dolph J. May Ran­dolph May is pres­i­dent of the Free State Foun­da­tion.

Plan on fol­low­ing the fight over Pres­i­dent Trump’s nom­i­na­tion to the Supreme Court of D.C. Cir­cuit Court Judge Brett Ka­vanaugh? If so, then make sure you brush up on so-called Chevron def­er­ence. De­spite Judge Ka­vanaugh’s su­perb qual­i­fi­ca­tions, the Chevron doc­trine likely will play a sig­nif­i­cant role in the bruis­ing bat­tle ahead be­cause of the role it has played in fa­cil­i­tat­ing the ex­pan­sion of the ad­min­is­tra­tive state.

In its land­mark 1984 de­ci­sion in Chevron USA Inc. v. Nat­u­ral Re­sources De­fense Coun­cil, the Supreme Court held that if a statu­tory pro­vi­sion is am­bigu­ous, and if a fed­eral agency’s in­ter­pre­ta­tion is a per­mis­si­ble in­ter­pre­ta­tion of the statute, then it is to be given “con­trol­ling weight.” Thus, in­vo­ca­tion of Chevron def­er­ence gen­er­ally is out­come-de­ter­mi­na­tive in fa­vor of up­hold­ing agency reg­u­la­tions.

In re­cent years, schol­ars — and, im­por­tantly for present pur­poses, Supreme Court Jus­tices — have ex­pressed skep­ti­cism re­gard­ing Chevron. Chief Jus­tice John Roberts, and Jus­tices Clarence Thomas and Neil Gor­such are in the camp of Chevron skep­tics. And in a con­cur­ring opin­ion is­sued in Pereira v. Ses­sions, shortly be­fore an­nounc­ing his re­tire­ment, Jus­tice An­thony Kennedy an­nounced that he too has joined the Chevron skep­tic ranks. De­cry­ing what he called the “re­flex­ive def­er­ence” courts of­ten ac­cord agency ac­tions, Jus­tice Kennedy de­clared that “it seems nec­es­sary and ap­pro­pri­ate to re­con­sider, in an ap­pro­pri­ate case, the premises that un­der­lie Chevron and how courts have im­ple­mented that de­ci­sion.”

In call­ing for Chevron’s re­con­sid­er­a­tion, Jus­tice Kennedy con­cluded with this fun­da­men­tal point: “The proper rules for in­ter­pret­ing statutes and de­ter­min­ing agency ju­ris­dic­tion and sub­stan­tive agency pow­ers should ac­cord with con­sti­tu­tional sep­a­ra­tionof-pow­ers prin­ci­ples and the func­tion and prov­ince of the Ju­di­ciary.” In­deed, a proper un­der­stand­ing of sep­a­ra­tion of pow­ers in our sys­tem of govern­ment is at the heart of un­der­stand­ing the ba­sis for the ris­ing Chevron skep­ti­cism.

In a key pas­sage in the Chevron opin­ion — af­ter first de­ter­min­ing the Clean Air Act pro­vi­sion at is­sue was am­bigu­ous — Jus­tice John Paul Stevens wrote: “While agen­cies are not di­rectly ac­count­able to the peo­ple, the Chief Ex­ec­u­tive is, and it is en­tirely ap­pro­pri­ate for this po­lit­i­cal branch of the Govern­ment to make such pol­icy choices.” Ac­cord­ing to Jus­tice Stevens, it is proper to “rely on the in­cum­bent ad­min­is­tra­tion’s views of wise pol­icy to in­form its judg­ments.”

In one sense, the Court’s po­lit­i­cal ac­count­abil­ity ra­tio­nale has some ap­peal as a mat­ter of sep­a­ra­tion of pow­ers doc­trine when a court de­ter­mines — of­ten too quickly with­out re­sort to sound tex­tu­al­ist rea­son­ing — that it is con­fronted with an am­bigu­ous statute. Jus­tice Stevens likely viewed Chevron as a way to fit ad­min­is­tra­tive agen­cies into the Con­sti­tu­tion’s tri­par­tite con­sti­tu­tional regime. Nev­er­the­less, Chevron is cer­tainly in ten­sion with Chief Jus­tice John Mar­shall’s fa­mous ad­mo­ni­tion in Mar­bury v. Madi­son: “It is em­phat­i­cally the prov­ince and duty of the ju­di­cial depart­ment to say what the law is.”

When Jus­tice Kennedy in Pereira in­voked “the func­tion and prov­ince of the Ju­di­ciary,” he surely had Mar­shall’s dec­la­ra­tion in mind. And so too has Judge Ka­vanaugh, Jus­tice Kennedy’s for­mer law clerk, when he has cited Mar­bury in the con­text of ex­press­ing skep­ti­cism re­gard­ing Chevron’s reach.

Chevron it­self in­volved a de­ci­sion of the En­vi­ron­men­tal Pro­tec­tion Agency, an ex­ec­u­tive branch agency. With re­gard to ex­ec­u­tive branch agen­cies like EPA, or, say, the De­part­ments of Com­merce, La­bor, or Trans­porta­tion, it may be nat­u­ral, as Jus­tice Stevens did, to re­fer to the “in­cum­bent ad­min­is­tra­tion” and to in­voke the chief ex­ec­u­tive’s di­rect ac­count­abil­ity to the peo­ple.

But not so with the so-called in­de­pen­dent agen­cies like the FCC, SEC, FTC, or the NLRB, with their po­tent brew of com­bined quasi-ex­ec­u­tive, quasi-leg­isla­tive, and quasi-ju­di­cial pow­ers. Un­like the sin­gle heads of ex­ec­u­tive branch agen­cies who may be ter­mi­nated at will by the pres­i­dent, the in­de­pen­dent agen­cies’ mem­bers serve fixed, stag­gered terms. And the pre­vail­ing view is that they may be fired by the pres­i­dent only for good cause.

So, while the in­de­pen­dents may have a de­gree of ac­count­abil­ity to the pres­i­dent by virtue of some leg­is­lated con­trols, they are not as po­lit­i­cally ac­count­able as the ex­ec­u­tive branch agen­cies. This is the rea­son that a 1937 pres­i­den­tial com­mis­sion de­scribed the in­de­pen­dent agen­cies as a “head­less fourth branch” of govern­ment, “a hap­haz­ard de­posit of ir­re­spon­si­ble agen­cies and un­co­or­di­nated pow­ers.” The com­mis­sion added that this “head­less fourth branch” is in­con­sis­tent with “the ba­sic the­ory of the Amer­i­can Con­sti­tu­tion that there should be three ma­jor branches of the Govern­ment and only three.”

Be­cause the in­de­pen­dent agen­cies are less po­lit­i­cally ac­count­able than the ex­ec­u­tive branch agen­cies, I pro­posed in a 2006 law re­view ar­ti­cle, “Defin­ing Def­er­ence Down: In­de­pen­dent Agen­cies and Chevron Def­er­ence,” that their de­ci­sions should re­ceive less re­flex­ive ju­di­cial def­er­ence than those of ex­ec­u­tive branch agen­cies. In my view, this makes sense be­cause Chevron it­self rests so heav­ily on the po­lit­i­cal ac­count­abil­ity ra­tio­nale.

In­ter­est­ingly, Jus­tice Elena Ka­gan agrees. In an in­flu­en­tial 2001 law re­view ar­ti­cle, “Pres­i­den­tial Ad­min­is­tra­tion,” Jus­tice Ka­gan, then a Har­vard Law School pro­fes­sor, stated that the dis­par­ity in pres­i­den­tial con­trol should lead to “giv­ing greater def­er­ence to ex­ec­u­tive than to in­de­pen­dent agen­cies.” I don’t know

The Court’s po­lit­i­cal ac­count­abil­ity ra­tio­nale has some ap­peal as a mat­ter of sep­a­ra­tion of pow­ers doc­trine when a court de­ter­mines that it is con­fronted with an am­bigu­ous statute.

whether Jus­tice Ka­gan still ad­heres to this view, or whether Judge Ka­vanaugh agrees or not.

In any event, re­gard­less how Chevron ap­plies to ex­ec­u­tive branch agen­cies, I still be­lieve, as I said in 2006, that “it is odd in a con­sti­tu­tional sys­tem with three de­fined branches for courts to give con­trol­ling def­er­ence to agen­cies that, not with­out rea­son, are com­monly re­ferred to as ‘the head­less fourth branch.”

Based on Judge Ka­vanaugh’s ju­rispru­dence, es­pe­cially his care­ful schol­arly at­ten­tion to the Con­sti­tu­tion’s sep­a­ra­tion of pow­ers and the proper role of the ju­di­ciary, I sus­pect that he too might agree that Chevron’s ap­pli­ca­tion should be re­con­sid­ered.

ILLUSTRATION BY LI­NAS GARSYS

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