Constitutional Concerns about Chevron [No. 86]

recent years, Chevron deference has come under attack by academics, by judges, and on the
Hill. For instance, pending in congress is the separation
of powers restoration act. Which would eliminate Chevron deference, and
tell courts they need to review De Novo, without any deference, agency interpretations of law. You also see a number of federal judges criticizing
Chevron deference. Most notably Justice Gorsuch at his confirmation
hearing, Chevron deference was front and center. Because as a judge on the 10th Circuit Court
of Appeals, had raised constitutional concerns about Chevron. Justice Thomas has raised constitutional concerns
about Chevron. And most recently Justice Kennedy has raised
constitutional concerns about Chevron. So, what are these Constitutional concerns? What’s going on? What’s wrong with Chevron? Why should we get rid of it? I think before we get to the constitutional
concerns, we should return to the Administrative Procedure Act. The Administrative Procedure Act commands
courts to determine questions of law and the constitution. There’s nothing in the Administrative Procedure
Act itself, in the text, that says the court should defer to agencies. Now, there’s historical debates about whether
deference doctrines were codified, backdrop principles of common law were codified. But the text itself doesn’t say anything about
deference. And that’s an important fact when we’re determining
what to do with a deference doctrine. Now, when we’re looking at the Constitutional
concerns, they kind of come in two main flavors. The first is that there’s an Article Three
concern under the Constitutional Chevron deference. As Justice Thomas has explained, under Marbury
vs. Madison, it’s the duty of courts to say what the law is. Chevron deference by contrast says that it’s
the agency’s primary authority to say what the law is. In other words, even if the court thinks an
agency’s interpretation is the not the best interpretation, the right interpretation of
a statute. The court still has to defer, so long as it’s
reasonable. So, that could raise some article three judicial
concerns about Chevron. The other types of concerns that Justice Gorsuch
has explored, are the Article One concerns, the nondelegation concerns. In other words, Chevron deference may encourage
congress to delegate too much lawmaking power to federal agencies. And that creates problems of non-delegation,
because Congress isn’t playing it’s proper role to legislate. And agencies are playing too much of a role. And so, when you combine these two constitutional
concerns, with the fact that Administrative Procedure Act says nothing about deference,
Chevron deference, you might have an opportunity here to eliminate to doctrine.

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