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"The Constitutional Case for Chevron Deference" by Jonathan Siegel (2018)

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Administrative State
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Five Pillars of the Administrative State
• Judicial deference
• Nondelegation
• Executive control
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"The Constitutional Case for Chevron Deference" (2018) is a working article as of May 2018 by American law professor Jonathan R. Siegel that aims to put forth a defense of Chevron deference within a constitutional framework. Siegel specifically seeks to defend Chevron deference from the claim that the deference regime violates Article III of the Constitution, which vests judicial power in the courts. He also addresses other contemporary critiques of Chevron, including arguments that the deference regime facilitates bias in favor of agencies and violates the nondelegation doctrine.[1]

HIGHLIGHTS
  • Source: Vanderbilt Law Review
  • Abstract: Siegel provides the following summary of his argument in the introduction to the paper:


    "Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise 'independent judgment' when interpreting statutes. This Essay shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An interpretation that concludes that a statute delegates power to an executive agency is still an interpretation. The power implicitly delegated to an agency by an ambiguous statute is not the power to interpret the statute, but the power to make a policy choice within the limits set by the possible meanings of the statute."[1]

    • Author

    Jonathan R. Siegel

    Jonathan R. Siegel is an American law professor. As of May 2018, Siegel held the title of F. Elwood and Eleanor Davis Research Professor of Law at George Washington University. Prior to joining the George Washington University faculty in 1995, Siegel worked as a member of the appellate staff for the U.S. Department of Justice and as a law clerk for Chief Judge Patricia M. Wald of the United States Court of Appeals for the District of Columbia Circuit. According to his faculty profile page on the George Washington University website, Siegel's primary areas of interest are civil procedure, federal jurisdiction, administrative law, and intellectual property.[2]

    Below is a summary of Siegel's education and career:[2]

    • Academic degrees:
      • B.A., Harvard University, Cambridge, Massachusetts
      • J.D., Yale Law School, New Haven, Connecticut
    • Law professor and legal scholar
    • Former practicing attorney and law clerk

    Chevron and its critics

    See also: Chevron deference

    Siegel opens the paper by presenting contemporary arguments against Chevron deference—a principle in administrative law that compels federal courts to defer to agency interpretations of ambiguous statutes that they administer. The first argument, championed by Supreme Court Justices Clarence Thomas and Neil Gorsuch as well as certain members of Congress, claims that Article III of the Constitution vests judicial power in the courts and, therefore, prohibits courts from deferring to agency interpretations of statutes.[1]

    The second argument, backed by Columbia law professor Philip Hamburger, contends that Chevron deference violates the Constitution's Due Process Clause by "requiring judges to exercise systematically biased judgment in favor of the government," according to Siegel's analysis.[1]

    Lastly, Seigel identifies an argument supported by Cornell professor Cynthia Farina, who claims that Chevron deference violates the nondelegation doctrine by permitting Congress to delegate legislative power to administrative agencies and concentrating authority in the executive branch.[1]

    Defense of Chevron

    Interpretation

    Siegel argues that judges do not shrink from their constitutional responsibility to interpret the law by adhering to Chevron deference. Instead, Siegel claims that the interpretation of a statute as a delegation of authority to an administrative agency still constitutes an exercise of judicial interpretation:[1]

    “ The key response to the critics’ rejoinder is that Chevron deference, properly understood, does not prevent a court from interpreting statutes. An interpretation of a statute that determines that the statute delegates authority to an administrative agency is still an interpretation. Even if one accepts the critics’ understanding of the judicial duty of interpreting a statute—even assuming it to require a court to exercise 'independent judgment'—the result of exercising that duty might still be the conclusion that Congress has vested the agency with the power to make a policy choice.[1][3] ”

    Forms of delegation

    Siegel makes a comparison between constutitional delegations of authority to Congress and congressional delegations of authority to administrative agencies to support his defense of Chevron deference. He draws on the Census Clause and the Apportionment Clause as the grounds for his comparison:[1]

    “ [T]he Census Clause and the Apportionment Clause are like ambiguous agency

    statutes. They clearly delegate some power to Congress, just as an agency statute delegates power to an agency. But they are ambiguous regarding important details as to how the delegated power is to be exercised. The Court interpreted the instrument delegating the power as implicitly delegating, to the entity receiving the power, the power to choose among the reasonable possible resolutions of the ambiguity. Whether that interpretation is right or wrong, it is surely an interpretation. The Court may have erred, but it did not violate Article III. Similarly, when a court determines that an ambiguous agency statute is best understood as delegating to the agency the power to choose among the possible reasonable interpretations of the statute, the court is interpreting the statute. Its interpretation may be right or wrong, but it is still an interpretation.[1][3]

    		”

    Other critiques

    See also: Nondelegation doctrine

    Siegel devotes the remainder of the article to addressing Hamburger and Farina's earlier critiques. Regarding Hamburger's claim of judicial bias, Siegel argues that "no one would claim that courts are unconstitutionally showing bias in favor of agencies ... The agencies have the advantage simply because courts will necessarily permit the agencies to exercise the power conferred on them by statute." Siegel further claims that while Farina's contention that Chevron deference violates the nondelegation doctrine may have some merit, it does not demonstrate that Chevron results in negative consequences:[1]

    “ So the critics are correct that the nondelegation doctrine does little to enforce its supposed restraints on the delegation of legislative power to executive agencies. Again, however, what is missing from the critics’ arguments is any real showing that Chevron makes things worse in this regard. ... The nondelegation doctrine is about whether the executive is capable of receiving a given choicemaking power at all, not about whether Congress confers the power implicitly or explicitly.[1][3] ”

    See also

    Full text

    Footnotes

    1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 Social Science Research Network, "The Constitutional Case for Chevron Deference" 2018
    2. ↑ 2.0 2.1 George Washington University, "Jonathan R. Siegel," accessed May 17, 2018
    3. ↑ 3.0 3.1 3.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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    Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
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