Arguments against judicial deference: Deference is unconstitutional
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This page captures the arguments that judicial deference is unconstitutional, one of the main arguments that has been advanced in opposition to judicial deference as a doctrine.
Deference occurs when a federal court defers to an agency’s interpretation of (1) a statute Congress authorized the agency to administer or (2) the agency’s own regulations. The U.S. Supreme Court developed multiple deference doctrines throughout the 20th century, including Chevron deference, Skidmore deference, and Auer deference.[1][2]
Since 2015, the United States Supreme Court has reconsidered aspects of judicial deference, refining Chevron deference, limiting its application, and recognizing exceptions, according to administrative law scholar Michael Kagan. In Kisor v. Wilkie (2019), the court upheld Auer deference but narrowed its scope, reflecting what Kagan described as a "period of uncertainty" for judicial deference.[3][4]
On June 28, 2024, the Supreme Court overturned Chevron deference in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, ruling that federal courts may not defer to an agency’s interpretation of an ambiguous statute.[5]
Deference is unconstitutional
Versions of this argument claim that deference violates the text or structure of the U.S. Constitution. Textual arguments focus on the words of Article III regarding the structure and duties of the courts as well as other provisions in the U.S. Constitution describing the duties of the federal government.
Opponents of deference argue that deference is unconstitutional according to the following claims.
Claim: Article III forbids courts from exercising deference
- Law professor Jonathan Siegel writes, “The latest claim is that the very concept of Chevron deference is unconstitutional. Judges, legislators, and scholars have suggested that the Constitution imposes a duty on courts to exercise ‘independent judgment’ when interpreting a statute. This duty, Chevron’s critics say, derives from Article III’s vesting of the ‘judicial Power’ in the courts, and it forbids courts from deferring to an agency’s interpretation.”[6]
Claim: Chevron deference creates opportunities for systemic bias
- Law professor Philip Hamburger writes, “Although the line-drawing here may be particularly difficult, judges cannot avoid it because the alternative is even worse. When judges defer to agency interpretations, they abandon their office of independent judgment and engage in systematic bias, and these dangers, being clear violations of Article III and the Fifth Amendment, are far more serious than the difficulties of wrestling with open-ended statutes. Put another way, it is better for judges to face up to disputes about statutory interpretation than to walk away from their constitutional role and a central constitutional right. The statutory uncertainties will be difficult, but they are no excuse for abandoning what (relatively speaking) are constitutional certainties. The judges thus must wrestle with the difficult statutory questions rather than give up on the Constitution’s clear and profound limits on judicial power.”[7]
- Walker says, “This role of federal agencies in legislative drafting may cast some doubt on the foundations for Chevron deference, in that agencies often are substantially involved in drafting the legislation that ultimately delegates to the agencies the primary authority to interpret that legislation. Agency technical drafting assistance, which I term ‘legislating in the shadows,’ may be particularly problematic.”[8]
- Walker writes, “Chevron deference provides perverse incentives for what Neomi Rao has coined ‘administrative collusion’: 'By fracturing the collective Congress and empowering individual members, delegation also promotes collusion between members of Congress and administrative agencies.'”[8]
- Judge Neomi Rao writes, “It is a reasonable interpretive principle that a majority of Congress did not vote for an elephant when it enacted a mousehole. This principle illustrates one of the problems with the Supreme Court’s decision in City of Arlington v. Federal Communications Commission, which upheld the application of Chevron deference to an agency’s interpretation of its jurisdiction. When an agency pushes at the boundaries of its jurisdiction, it is likely to be working with key legislators, who either desire expansion or are willing to tolerate it. Those members may be the gatekeepers to any formal legislative response to the agency. Allowing the agencies to expand their jurisdiction or to push on the boundaries of their delegated power can empower individual legislators in contravention of the enacting Congress. In this context, agencies are responsive not to Congress as an institution and its collectively negotiated laws, but instead to individual members or parts of Congress representing particular interests. Such collusion over the delegated authority of an agency suggests an additional reason for leaving questions of agency jurisdiction to the courts."[9]
- Attorney T.J. McCarrick describes anti-Chevron deference arguments in this way: “In sum, Chevron concentrates almost all government power in the administrative state. And by vesting agencies with authority to create, interpret, and enforce the law, individual liberty is placed at risk.”[10]
Claim: Deference prevents judicial review
- Justice Antonin Scalia argued that agencies might more often reach the right result on interpretive questions because of their expertise, but that is not a theoretical justification for deference if the constitutional duty of the courts is to say what the law is.[11]
- Scalia argued that some might think that courts accepting agency judgments on questions of law seems incompatible with John Marshall’s claim in Marbury v. Madison that the duty of the judicial department is to say what the law is. He says, “I suppose it is harmless enough to speak about ‘giving deference to the views of the Executive’ concerning the meaning of a statute, just as we speak of ‘giving deference to the views of the Congress’ concerning the constitutionality of particular legislation — the mealy-mouthed word ‘deference’ not necessarily meaning anything more than considering those views with attentiveness and profound respect, before we reject them. But to say that those views, if at least reasonable, will ever be binding - that is, seemingly, a striking abdication of judicial responsibility.”[11]
Claim: Chevron deference violates the nondelegation doctrine
- Jonathan Siegel summarizes a challenge to deference offered by Cynthia R. Farina. He writes, “Unlike the current critics, Farina does not see Chevron deference as a violation of Article III. She suggests instead that Chevron threatens to violate the nondelegation doctrine, although her point is somewhat different from that of the current critics. The essence of Farina’s argument is that in Chevron the Supreme Court failed to consider whether the assumption that every ambiguity in an agency statute constitutes an implicit delegation of power to the agency would contribute to the ever-increasing accumulation of power in the president in a way that threatens the balance of powers among the three branches of government.”[6]
- Siegel summarizes Justice Gorsuch’s view of Chevron, “Justice Gorsuch argues that Chevron makes things worse (from the perspective of the nondelegation doctrine) by permitting agencies to change their interpretations of ambiguous statutes over time. Permitting such vacillation, he argues, erodes the limitations that the nondelegation doctrine requires on the exercise of delegated power.”[6]
- Siegel summarizes Farina’s critique of Chevron: “Thus, Farina could argue, Chevron deference does make things worse from a nondelegation perspective, because it does more than simply approve intentional, but implicit, delegations of power that could have been made explicit. It also enhances agency powers in situations in which Congress did not imagine that it was delegating power at all. The former delegations might be just as valid as express delegations, but the additional, 'accidental' delegations might further enhance executive power to the point where the balance between the branches is irretrievably upset.”[6]
- Christopher J. Walker writes, “'The deference required by Chevron not only erodes the role of the judiciary,' Judge [Kent Jordan of the 3rd Circuit Court of Appeals] has argued, 'it also diminishes the role of Congress.' In particular, Article I vests Congress with 'All legislative Powers,' yet Chevron deference encourages members of Congress to delegate broad lawmaking power to federal agencies. In doing so, Congress further frustrates the values of the nondelegation doctrine.”[8]
Footnotes
- ↑ Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," February 2017
- ↑ Blattmachr, J. (2006). Circular 230 Deskbook. New York, NY: Practising Law Institute. (pages 1-21)
- ↑ UNLV William S. Boyd School of Law Legal Studies Research Paper, "Loud and Soft Anti-Chevron Decisions," September 9, 2017
- ↑ SCOTUSblog, "Kisor v. Wilkie," accessed December 10, 2018
- ↑ SCOTUSblog, "Loper Bright Enterprises v. Raimondo," accessed July 3, 2024
- ↑ 6.0 6.1 6.2 6.3 Jonathan R. Siegel, "The Constitutional Case for Chevron Deference," Vanderbilt Law Review, Vol. 71 (2018)
- ↑ Philip Hamburger, "Chevron Bias," The George Washington Law Review, Vol. 84, No. 5 (September 2016)
- ↑ 8.0 8.1 8.2 Christopher J. Walker, "Attacking Auer and Chevron Deference: A Literature Review," The Georgetown Journal of Law & Public Policy, Vol. 16 (2018)
- ↑ Neomi Rao, "Administrative Collusion: How Delegation Diminishes the Collective Congress," New York University Law Review, Vol. 90, No. 5 (2015)
- ↑ T.J. McCarrick, "In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron," San Diego Law Review (2018)
- ↑ 11.0 11.1 Antonin Scalia, "Judicial Deference to Administrative Interpretations of Law," Duke Law Journal, Vol. 1989, No. 3 (1989)
