In Defense of Chevron Deference

(Originally published in August 2016)

Ever since the U.S. Supreme Court established the rule of Chevron deference, which requires federal courts to defer to a federal agency’s reasonable interpretation of the ambiguous terms of a statute that the agency administers[1] (see Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)), most have accepted the rule as a permanent and important fixture of contemporary administrative law. At the same time, the rule has managed to remain the perennial subject of frequent –often high-profile– criticism, and occasionally even the subject of predictions of, and calls for, its imminent demise. Although the intensity of the criticisms against Chevron deference have waxed and waned over the years, their general content has remained the same. Criticisms of the rule are usually premised on accusations that Chevron deference promotes an unaccountable so-called “fourth branch” of government made up of administrative agencies, that Chevron encroaches on judges’ constitutional duty to adjudicate what the law is, and that Chevron generates too much unpredictability because it is difficult to discern how and when it applies. See, e.g., Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779 (2010). These critiques and calls to arms, however, tend to focus too much on dismissing Chevron deference in principle, without due appreciation for the lack of compelling alternatives to Chevron deference, for the pragmatism of Chevron deference, and for the limits of its application.

Policy-making and statutory interpretation must and will occur in order for a government to function, regardless of who must conduct those activities or the framework in which they must be conducted. Therefore, the merits of Chevron must be discussed in light of its alternatives. The alternatives to Chevron deference primarily consist[2] of either full de novo judicial interpretation of ambiguous statutes without any deference to agencies,[3] or the case-by-case and often inconsistent and unpredictable examinations courts conducted prior to Chevron, in which courts would accord deference to an agency’s interpretation of an ambiguous statute only to the extent that the court found the agency’s interpretation and justifications persuasive. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). Both of these alternatives have been considered by the Supreme Court over the years, and they have both been ultimately rejected by the Court for good reason.

The Supreme Court’s original justifications for Chevron deference over de novo and Skidmore judicial review standards make as much sense today as they did when the Supreme Court issued Chevron in 1984. Justice Stevens, writing for a unanimous Court, premised his analysis, in part, by noting that, “We [the Supreme Court] have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” Chevron, 467 U.S. at 844. “Judges are not … part of either political branch of the Government, ” Chevron continues, “[and w]hile 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 –resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.” Chevron, 467 U.S. at 865–66 (internal footnotes omitted).

Key to Chevron’s analysis in this regard is its recognition that when a court’s exhaustive application of the tools of statutory construction cannot discern the clear meaning of a particular statute (and that is assuming Congress intended the statute to have a clear meaning), the task of legal interpretation tends to turn into choosing between several reasonable interpretations of the statute, which in turn often turns into policy-making. Chevron made the telling observation that the “arguments over policy that are advanced in the parties’ briefs [to the Court] create the impression that respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency …. Such policy arguments are more properly addressed to legislators or administrators, not to judges.” Id. at 864.

It is made famously clear in Marbury v. Madison that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803) (emphasis added). But when a court endeavors to determine the meaning of a statute that is ambiguous, the line between the task of determining what the law is and the task of determining what the law should be blurs. To determine what the law should be is to make policy. Although courts may, in certain circumstances, effectively veer into what is arguably policy-making (e.g., establishing prudential rules related to standing or when the Court must weigh competing policy concerns to resolve a Constitutional question) it would be difficult to argue that the Constitution intends the judicial branch to be a primary policy-making body of the government.

One of the most robust and pragmatic defenses of Chevron deference from outside of the text of the opinion, specifically with respect to why (and these are his words) “Chevron is unquestionably better than what preceded it,” comes from none other than the late Justice Antonin Scalia. The Honorable Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517 (1989). “Congress now knows,” Justice Scalia observed, “that the ambiguity [Congress] creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known.” Id. Moreover, critiques that pine for the days before Chevron must make sure to not turn a blind eye to the widespread confusion that existed then with regards to how different courts and circuits would treat statutory interpretation by agencies. The Supreme Court established the rule of Chevron deference in 1984, in large part, to stem that confusion.

Justice Scalia further explained that a “major advantage” of Chevron deference is that it permits agencies the “needed flexibility” to administer a statute in line with “its advancing knowledge” and “changing political pressures,” and Chevron permits the public “appropriate political participation…in the administrative process.” Id. at 518. “In the long run,” Justice Scalia concluded, “Chevron will endure and be given its full scope –not so much because it represents a rule that is easier to follow [than the approaches that preceded it] and thus easier to predict (though that is true enough), but because it more accurately reflects the reality of government, and thus more adequately serves its needs.” Id. at 521.

There are other pragmatic reasons why Chevron deserves to endure. Under the precedent of Chevron, potential confusion to the public and industry is mitigated because Chevron incentivizes agencies to preemptively clarify via notice and comment rule-making how the agency would apply an ambiguous statute. Under an alternative system in which agencies’ rules are not accorded any deference by the courts, it would be less likely that agencies would propose their interpretations of ambiguous statutes to the public prior to the agencies’ implementation of the statutes. The agency would recognize that any such preemptive efforts by it would be likely exercises in futility. Instead, the agency would likely immediately implement the statute in accordance with the agency’s best judgement of its meaning. Courts would not provide preemptive interpretations or clarifications of the statute’s meaning in the agencies’ steads because courts generally do not provide advisory opinions –rather, courts decide cases and controversies. Confusion among industry and the public as to how a particular statute might authoritatively apply might last for years, ending only when the Supreme Court decides a case featuring that statute, and even then the decision could be limited to the particular facts of that case. Alternatively, the agency, industry, or the public could, in theory, ask Congress to clarify how a seemingly ambiguous statute might apply to a given scenario before the statute is implemented. However, it is unclear at best how Congress might provide such clarification without having to amend or refine the statute’s language by passing a new law –an endeavor which would likely take years and may not ever succeed.

Furthermore, concerns that it is difficult today for lower courts and litigating parties to determine when and how Chevron applies may be overstated. A Westlaw KeyCite search (on November 2, 2016) indicates that of the 14,814 published opinions that have cited Chevron, less than 0.1 percent of those cites have been negative, in that they either distinguished Chevron or declined to extend Chevron to the case in question.[4] Further, those rare cases that do distinguish Chevron or decline to extend it to the case in question usually deal with the peripheries of Chevron deference, and often culminate in the Supreme Court providing helpful further clarification of Chevron’s scope.

On that note, accusations that Chevron has unduly emboldened a fourth branch[5] of government often do not fully acknowledge the limits of Chevron’s scope. As a threshold issue, a court will not apply Chevron at all if Congress did not delegate authority to the agency generally to make rules carrying the force of law, the agency interpretation claiming deference was not promulgated in the exercise of that authority, the agency does not “administer” the statute at issue, or the agency did not issue its statutory interpretation via rule-making, certain formal adjudication procedures, or other procedures specifically required by Congress in that instance.[6] See, e.g., United States v. Mead Corp., 533 U.S. 218 (2001) (in which the Court determined based on the first two aforementioned factors that application of Chevron to a U.S. Customs Service tariff classification ruling would be inappropriate). And when courts do apply Chevron, Chevron is clear that courts must not grant Chevron deference to an agency’s interpretation of a statute if the statute’s meaning is clear with respect to the issue before the court (that is “step one” of the application of Chevron). And at step two of Chevron, courts will not grant Chevron deference to an agency’s interpretation that is unreasonable, arbitrary, capricious, or an otherwise impermissible construction of the statute. Further, the agency’s interpretation cannot violate the Constitution and it cannot be otherwise not in accordance with the law. There are also more discrete limitations to the scope of Chevron. The Supreme Court, for example, has clarified that courts must not apply Chevron deference when an agency does not provide a “reasoned explanation for its decision to depart from existing enforcement policy” (Encino Motorcars, LLC v. Navarro et al., 136 S. Ct. 2117, 2120 (2016)) or “in extraordinary cases … [where] there may be reason to hesitate before concluding that Congress has intended such an implicit delegation” (King v. Burwell, 135 S. Ct. 2480, 2488–89 (2015) (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)).

Even if the court upholds the agency’s interpretation –the court having determined that Chevron applies, the statutory language is ambiguous, and that the agency has permissibly interpreted the ambiguous language– Congress may overrule the agency’s interpretation. Congress may pass a law closing the gap in the law that the agency had filled with its interpretation, pass a law removing the agency’s discretion to fill the gap, or pass a law otherwise refuting the agency’s interpretation. In such instances the agency’s interpretation would concede to the will of Congress. In certain circumstances Congress may use an expedited legislative process to overrule new and recently promulgated regulations by application of the Congressional Review Act (codified at 5 U.S.C. § 801). Subject to these and other constraints, Chevron deference is certainly not a doctrine running amok, contrary to some of its more pointed critiques.

This all is not to say that Chevron deference is a perfect doctrine, or that the scope of Chevron need never be further clarified. However, Chevron deference, and the cases that have further defined its scope, have established a heavy measure of clarity, rationality, and consistency for judicial review of agency actions. Further, alternatives to Chevron appear to offer little comparative advantage. Ultimately, Chevron is smart judicial policy -the result of a unanimous 1984 Supreme Court decision drawing from over 150 years of previous Supreme Court jurisprudence, and then subjected to over three more decades of additional scrutiny, development, and clarification by the Supreme Court. To paraphrase Justice Scalia, Chevron should and must endure.

[1] Chevron analysis generally follows a two-step process. First, a court determines “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 . . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, [the court moves to second step of the Chevron analysis], [at which point] the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

[2] There is, in theory at least, a third alternative to Chevron that is worth mentioning. Under this third alternative, courts would not engage in or allow any interpretation of ambiguous statutes and statutes for which it is unclear how they might apply to the particular question at issue in the case. The court would thereby effectively send the law back to Congress for revision or other refinement, at least with respect to the question at issue. At first blush, this makes some theoretical sense. Congress, after all, is the law-making body of the government. However, in practice the approach would require a major reinterpretation of the non-delegation doctrine, and even more importantly, would necessitate a radical expansion and metamorphosis of Congress and a similarly radical contraction and metamorphosis of the executive branch. There are few depictions of what such an approach might actually look like in practice, so it is difficult to discuss the approach with any degree of specificity. Accordingly, this article does not consider it further, except to say that at least some significant level of delegation seems necessary in order for a complex government to function.

[3] See, e.g., the “Separation of Powers Restoration Act of 2016,” which would require courts “to decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.” (H.R. 4768, 114th Cong. (2016)) (passed by the U.S. House of Representatives on July 12, 2016).

[4] The author of this article ran the Westlaw KeyCite search on November 2, 2016. Of 14,814 cases citing Chevron, 139 cases either distinguished or declined to extend Chevron. That is approximately 0.94% of the 14,814 cases which cited Chevron.

[5] This article must acknowledge at this point that there is no actual “fourth branch.” For the most part, federal agencies are very much a part of the executive branch. That statement is prefaced with “for the most part” because independent agencies, although also part of the executive branch, are more insulated from the Office of the President. However, like non-independent agencies, independent agencies derive their existence from Congress and, to varying extents, may be held in check by Congress, the judiciary, and the President.

[6] This analysis is sometimes referred to as “Chevron step zero”.