Administrative Law Update: Calls for End to Chevron Deference
As 2017 draws to a close and administrative law practitioners reflect on the state of administrative law jurisprudence, one thing becomes clear: there are increasing calls, at both the federal and state levels, to do away with Chevron deference. The potential downfall of this modern era administrative law bedrock is something all administrative law practitioners should continue to watch.
A. A Chevron Primer
As administrative law practitioners are well aware, the Chevron doctrine describes the practice of the courts deferring to administrative agencies’ interpretations of ambiguous statutes over which an agency is delegated rulemaking authority. The doctrine was announced in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) in which the Supreme Court ruled that in instances where a law passed by Congress is silent or ambiguous with regard to an issue, the courts must defer to an agency’s interpretation of the law it is in charge of implementing unless that interpretation is unreasonable. Under Chevron, the court must defer to the agency even if the court finds that other interpretations of the statute are reasonable and even if the court believes that the agency’s construction of the silent or ambiguous provision is not the most reasonable among varying interpretations. As explained in Chevron,
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issues, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
476 U.S. at 842-843.
B. The Great Chevron Debate
Since its creation, the Chevron doctrine has been the subject of widespread debate. Those who support Chevrondeference often cite agencies’ expertise in highly technical areas of regulation where such knowledge is important to implementing a comprehensible regulatory scheme, such as environmental protection and pharmaceutical regulation. Supporters also fear that the lack of such expertise on the part of the courts will result in policymaking on a case-by-case basis. See generally, Hon. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J 511 (1989).
Parties on both sides of the debate recognize how the Chevron doctrine can impact the judiciary’s role in a system of government based on the separation of powers. The debate is more than academic as the breadth of Chevron deference is often called into question by Justices on the Supreme Court. See Michigan v. E.P.A., 135 S.Ct. 2699, 2712 (2015) (Thomas, J., concurring) (Chevron deference “wrests from Courts the ultimate interpretative authority to ‘say what the law is’ Marbury v. Madison, 1 Cranch 137 (1803), and hands it over to the Executive.”); Arlington v. FCC, 133 S.Ct. 1863, 1877-1878 (2013) (Roberts, C.J., dissenting) (“Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules.”). Even the above-cited Justice Scalia, widely known as a supporter of Chevron during his tenure with the Supreme Court, questioned its bounds. See Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. 50, 68 (2011) (Scalia, J., concurring) (questioning the validity of the related doctrine of Auer deference under which the Chevron doctrine was expanded to require courts defer to agency interpretations of ambiguous regulations).
Those opposed to Chevron deference also raise due process concerns. As explained by Judge Shepard in Pedraza v. Reemployment Assistance Appeal, etc. et al, 208 So.3d 1253, 1257 (Fla. 3d DCA 2017),
It ordinarily would be outrageous for a judge in a case to defer to the views of one of the parties. And it ordinarily would be inconceivable for judges to do this regularly by announcing ahead of time a rule under which judges should defer to the interpretation of one of the parties in their cases, let alone the most powerful of parties, the government. Nonetheless, this is what the judges have done. It therefore is necessary to confront the reality that when judges defer to the executive’s view of the law, they display systematic bias toward one of the parties.
(Shepard, J., concurring).
Newly appointed Supreme Court Justice Neil Gorsuch also expressed concerns over the effects of Chevron on the constitutional system of separation of powers during his time as judge on the Tenth Circuit Court of Appeals. As explained by Justice Gorsuch, “Chevron . . . permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) (Gorsuch, J., concurring).
In his brief time on the Supreme Court, Justice Gorsuch has not shied away from questioning the bounds of Chevron deference. Recently, during oral argument in Digital Realty Trust, Inc. v. Somers, Docket No. 16-1276, Justice Gorsuch raised the question of whether it is proper to give deference to an otherwise reasonable agency interpretation if that interpretation was not the end product of proper notice and comment rulemaking under the APA. While such a question may blur the line between the issues of deference afforded to an agency in interpreting its statutory mandate and whether such interpretations were improperly promulgated under the APA, and thus unenforceable because of procedural defects, the extent to which Justice Gorsuch’s questioning results in an exception to Chevron remains to be seen.
C. Legislative and Constitutional Attempts to Eliminate Chevron Deference at the Federal and State level.
On January 11, 2017, the United States House of Representatives passed the Regulatory Accountability Act of 2017. Among its various provisions, section two of the bill, the Separation of Powers Restoration Act, would effectively repeal the judicially created doctrine of Chevron deference, which is considered a bedrock in modern administrative law jurisprudence. A copy of the House Act can be read here. Similarly, on July 18, 2017, S. 1577, also titled the Separation of Powers Restoration Act of 2017 was introduced in the Senate. The bill is currently before the Senate Committee on the Judiciary and a copy of the can be read here.
Both the House and Senate acts address Chevron deference. Specifically, instead of deferring to an agency’s reasonable construction, the Acts would amend the Administrative Procedure Act to require courts to conduct de novo review of “all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules” when evaluating federal regulations. However, critics are concerned that de novo review could wreak havoc on the rulemaking process and result in courts being split on issues which would affect the uniform application of regulations. It should be noted that similar legislation was passed in the House of Representatives in 2016 but did not make it out of the Senate.
Chevron deference has also seen attacks at the state level. For example, Florida’s Constitutional Reform Commission has proposed the addition of § 21 to Art. V. of the Florida Constitution. (Under the Florida Constitution, since 1968, every twenty (20) years the Constitutional Revision Commission is required to convene and examine the Florida Constitution for possible changes. Those proposals are then put forth to the public for a vote in the next upcoming election.). Proposal 6 would amend the Florida Constitution to add § 21 to Art. V which would read: “In interpreting a state statute or rule, a state court, or an administrative law judge may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute or rule de novo.” Proposal 6 has already received a favorable vote from the CRC’s Judicial Committee and is currently before the CRC’s Executive Committee. Whether Proposal 6 ultimately makes the ballot for voter approval in 2018 remains to be seen.
Fuerst Ittleman David & Joseph will keep a keen eye on develops of this important issue. The administrative law attorneys at FIDJ have represented clients before numerous agencies at both the federal and state level. For more information on our administrative law practice group, you can email us at firstname.lastname@example.org or call us at 305.350.5690.