Arguments against judicial deference

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What is deference in the context of the administrative state?

Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. The U.S. Supreme Court has developed several forms of deference in reviewing federal agency actions, including Chevron deference, Skidmore deference, and Auer deference. Learn about state-level responses to deference here.

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See also: Taxonomy of arguments about judicial deference and Judicial deference: a timeline

Judicial deference as a doctrine faces an uncertain future. The U.S. Supreme Court has signaled a willingness to reexamine the scope of deference, and numerous states have narrowed deference or prohibited it altogether.^[1]

This page captures the main arguments that have been advanced in opposition to judicial deference as a doctrine.

There are four main types of argument against judicial deference:

Deference is unconstitutional

Deference violates separation of powers principles

Deference violates legal practices and precedent

Deference is the product of bad jurisprudence

Deference is unconstitutional[edit]

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[edit]

This claim interprets the vesting clause in Article III of the United States Constitution to say that the courts must interpret the law without deferring to interpretations offered by any other entities.

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.”^[2]

Claim: Chevron deference creates opportunities for systemic bias[edit]

This claim focuses on how the U.S. Supreme Court's 1984 decision in Chevron v. NRDC changed the balance of power among the branches of the federal government. In that case, the court held that judges must uphold reasonable agency interpretations of ambiguous laws that Congress gave the agency authority to administer. Some who say Chevron creates a risk of systematic bias argue that the decision gives agencies an unfair advantage when people challenge their decisions in court. Others who worry about bias following Chevron argue that agencies might try to expand their powers by working with individual members of Congress. Members of Congress who want more powerful agencies may find it easier to shape regulations than to pass new laws and Chevron might keep judges from ensuring that the intent of Congress as a whole is the standard agencies follow during the regulatory process.

Examples of this claim follow below:

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.”^[3]

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.'”^[4]

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."^[5]

Walker writes, “[The] 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.”^[4]

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.”^[6]

Claim: Deference prevents judicial review[edit]

Judicial review refers to the power of the courts to interpret laws and overturn legislation and executive actions that conflict with the law or the U.S. Constitution. This claim focuses on the idea that courts abandon their duty to interpret and apply the law when they defer to agency interpretations of the law.

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.^[7]

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.^[7] 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.”^[7]

Claim: Chevron deference violates the nondelegation doctrine[edit]

According to the nondelegation doctrine, Congress may not give away its legislative power to another branch of government. This claim argues that the deference courts give to agency actions under Chevron (1984) violates the restrictions of the doctrine because Chevron anticipates Congress delegating policymaking power to agencies through ambiguous laws.

Jonathan Siegel summarizes a challenge to deference offered by Cynthia R. Farina.^[2] 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.”^[2]

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.”^[2]

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.”^[2]

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.”^[4]

Deference violates separation of powers principles[edit]

The idea of separation of powers was foundational during the drafting of the U.S. Constitution. Under the separation of powers doctrine, three powers (executive, legislative and judicial) need to be separated in order to restrain governmental overreach and the abuse of power. According to these arguments, deference transfers the judicial power to the executive branch and ignores the judicial obligation to serve as a check on the political branches.

Opponents of deference argue that the practice violates separation of powers principles according to the following claims.

Claim: Deference violates the separation of powers[edit]

The following supporters of this claim argue that general judicial deference approaches blur the boundaries between the branches of the federal government. In particular, those who make this claim argue that the different forms of deference all upset the balance of powers among the branches established by the U.S. Constitution.

Law professor Aditya Bamzai cited the dissent in City of Arlington v. FCC (2013) to highlight a separation-of-powers critique of Chevron deference. He writes, “The Chief Justice’s dissent (joined by Justices Kennedy and Alito) in City of Arlington v. FCC, for example, attempted to re-evaluate Chevron in light of separation-of-powers first principles. While nominally accepting the Chevron framework, the City of Arlington dissent stressed that its ‘disagreement’ with the majority is ‘fundamental’ and premised on the notion that the ‘duty to police the boundary between the Legislature and the Executive’ is ‘firmly rooted in our constitutional structure’ and is ‘as critical as [the] duty to respect that [boundary] between the Judiciary and the Executive.’ Fixing ‘the boundaries of delegated authority,’ according to the dissent, ‘is not a task’ that courts can ‘delegate to the agency’ because ‘[w]e do not leave it to the agency to decide when it is in charge.’”^[8]

Bamzai cites Roberts’ majority opinion in King v. Burwell (2015): “As the majority put it, the Court ‘often’ applies Chevron in assessing statutory issues of this nature, but not in ‘extraordinary cases’ of ‘deep ‘economic and political significance’ . . . central to th[e] statutory scheme.’ Accordingly, it was the Court’s—not the agency’s—’task to determine the [statute’s] correct reading.’”^[8]

Law professor Cynthia R. Farina writes in a law review article, “The outcome in some or even all of those cases may be correct, but the Court's analysis surely has been inadequate. It continues to invoke the Framers' fear of legislative dominance, and disregards the fact that much of the power which bred that fear has passed out of Congress's grasp. It recalls the Framers' concern that the President be a strong and independent player in the power struggle and overlooks the superiority that structure and custom have given him in a world of delegated power. It emphasizes the safeguards that the full legislative process was intended to provide against ill-considered, unrepresentative policy choices and ignores the reality that much of our most significant policy making now occurs in an administrative process where substitutes for the original safeguards must somehow be provided. It casts agencies in the role of law executors, worries about shielding them from undue legislative or judicial management, and blinks at their far more important role as lawmakers, whose vulnerability to White House influence ought to raise equally worrisome questions of undue control from the Chief Executive.”^[9]

Attorney T.J. McCarrick writes, “[I]ncreasingly, judges have declared open season on Chevron writ large, arguing it upsets the proper balance of power between the branches of government. This trend is notable, not for its critique of centralized power in bureaucracies—that’s old hat—but for its implicit embrace of judicial supremacy. Indeed, nearly every skeptic of Chevron genuflects at the altar of Marbury, trumpeting the judiciary’s power to ‘say what the law is.’ That is a fitting response for jurists laboring to throw off the yoke of a decision long considered the ‘counter-Marbury for the administrative state.’”^[6]

McCarrick writes, “Textualist and originalist critiques of administrative deference largely rest on the following rationales: (1) Chevron flatly contradicts the plain text of the Administrative Procedure Act (APA), which empowers courts—not agencies—to interpret statutory provisions; and (2) Chevron violates the separation of powers as originally understood.”^[6]

Farina writes, "For the deferential model to result in interpretive choices being made under the direction of elected officials, Congress and/or the President must exert meaningful direction over agency decisions." However, Since there were over 3 million employees of the administrative state at the time Farina was writing in 1989, she says that there is plausible skepticism that Congress or the president "can penetrate the immense size and bewildering complexity of the federal bureaucracy" and exercise control.^[9]

Farina writes, "Chevron's facile pronouncement that deference is necessary because the President's elected status entitles him to direct the course of regulatory policy—to the point of constitutionally disabling the judiciary from exercising even the modest slice of policy-making power represented by statutory interpretation—appears not even to recognize that a major theoretical transformation has occurred."^[9]

Law professor Christopher J. Walker writes, “Then-Judge Gorsuch took this argument one step further by saying that ‘[t]ransferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.’”^[4]

Claim: Auer deference violates separation of powers[edit]

Auer deference requires courts to uphold agency interpretations of ambiguous regulations promulgated by that same agency. This claim focuses on the idea that the U.S. Supreme Court cases that developed Auer deference, Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., misapplied separation of powers principles by allowing agencies to interpret their own ambiguous regulations without the neutral input of the courts.

Aditya Bamzai cited Thomas’ concurrence from Perez (2015) questioning Auer.^[8] He writes, “Justice Thomas likewise questioned the ‘legitimacy’ of Seminole Rock, which (according to him) ‘effect[ed] a transfer of the judicial power to an executive agency’ and ‘raise[d] constitutional concerns’ by ‘undermin[ing]’ the Court’s ‘obligation to provide a judicial check on the other branches.’ That was so because, according to Justice Thomas, ‘the judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.’ In language that could apply just as easily to Chevron as to Seminole Rock, he claimed that ‘[w]hen courts refuse to decide what the best interpretation is under the law, they abandon the judicial check.’”^[8]

Christopher J. Walker writes, “[T]he main case for eliminating Auer deference is two-fold: First, it is unconstitutional (or otherwise contrary to the proper separation of governmental powers in a Blackstone-Locke-Montesquieu sense) for an agency official to both make and execute the same law. Second, such combination of law-making and law-executing authority creates inappropriate incentives for agencies to draft vague regulations and interpret those regulations through less-formal means after the fact.”^[4]

Deference violates legal practices and precedent[edit]

This argument against deference says that Chevron and similar cases break with U.S. Supreme Court precedent and the Administrative Procedure Act (APA), which governs agency procedures. The question of how much respect courts should give to agency interpretations of statutes appeared long before 1984, when the court decided Chevron. Some defenders of deference cite as precedent the deferential way courts have handled cases involving writs of mandamus, which is a court order to government officials commanding them to correct an abuse of discretion or to fulfill an official duty. According to this argument, defenders of deference misinterpret the history of writs of mandamus.^[10]

The following claims support the argument that deference violates legal practices and U.S. Supreme Court precedent.

Claim: Chevron (1984) was a break from the legal practice of the early American Republic[edit]

Those who make this claim argue that early U.S. court decisions articulated an expansive role for judges to review laws and executive actions without granting binding deference to the views of the other branches of government.

Aditya Bamzai argued that Marbury v. Madison seems to contradict Chevron in its conception of the role of the judiciary.^[8] He writes, “At first blush, the concept may appear inconsistent with Chief Justice Marshall’s assertion, in Marbury v. Madison, that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is’ —a tension that has prompted some to characterize Chevron as the ‘counter-Marbury’ of the administrative state.”^[8]

Bamzai writes that Chevron was a break with precedent: “That perspective accords with the view, expressed by Ann Woolhandler, that ‘[t]he de novo model in its various manifestations, which left the final say to the judiciary rather than the executive, was the predominant form of judicial review of executive action in the early Republic.’ Chevron (or at least, its twentieth-century precursors), on this perspective, is not an outgrowth of, but rather a break from, what came before it.”^[8]

Law professor Ann Woolhandler writes, “[T]he background assumption that the first hundred years were an age of judicial deference to agencies implicitly undergirds current claims that the executive agencies can more legitimately exercise delegated lawmaking power than the courts. Historically, however, the courts exercised significant lawmaking powers both under the common law and under nineteenth-century administrative law. The pre-ICC law tends to demonstrate the long pedigree of inelegant allocations of lawmaking authority between courts and agencies that persisted until the Supreme Court's decision in Chevron U.S.A. v. Natural Resources Defense Council transferred significant lawmaking authority from the courts.”^[11]

Woolhandler writes, "The existence of some historical precedent for a deferential style of review, however, does not necessarily suggest that either history or political theory fully supports the Chevron decision. Defenders of Chevron rely primarily on arguments of legitimacy — that the allocation of decisional authority to the agencies is preferable because they are more politically accountable than the courts insofar as the President retains removal power for policy disagreements. However, congressional intent is also a source of legitimacy and it is unlikely that Congress, by silence, always intends to delegate such plenary lawmaking powers to the agency as Chevron accords."^[11]

Law professor Jerry L. Mashaw writes, “The contributions of the Jacksonian era to modern administrative law are thus to be found largely in the understandings that are reflected in the perennial competition between congresses and presidents for political control of administration, and in the internal rules, practices, and systems of the administrative agencies and departments themselves. Not much administrative law that reflects our contemporary understandings was to be found in the courts. Because that is where administrative lawyers tend to look for it, we have conventionally taken the view that none existed.”^[12]

Law professor Cass R. Sunstein writes, “Before 1984, the law thus reflected a puzzling and relatively ad hoc set of doctrines about when courts should defer to administrative interpretations of law. All this was changed by Chevron.”^[13]

Law professor Thomas Merrill writes, “Prior to 1984, the Supreme Court had no unifying theory for determining when to defer to agency interpretations of statutes. The approach was instead pragmatic and contextual. One feature of the Court's practice was that deference could range over a spectrum from ‘great’ to ‘some’ to ‘little’ (although no attempt was ever made to calibrate different degrees of deference with any precision). A particularly common approach was to cite the views of those charged with administration of the statute as one of several reasons for adopting a particular construction. Thus, the Court might embrace a particular interpretation (1) because it was supported by the language of the text, (2) because it was consistent with the legislative history, and (3) because it was the longstanding construction of the administrative agency. To be sure, there were also decisions at the polar extremes during this era-either ignoring the agency view or treating it as virtually dispositive. But in practice, deference existed along a sliding scale, bridging these outer limits.”^[14]

Bamzai cited Judge Henry Friendly in Pittston Stevedoring Corp. v. Dellaventura saying, “it was ‘time to recognize . . . two lines of Supreme Court decisions on th[e] subject’ of judicial deference ‘which are analytically in conflict, with the result that a court of appeals must choose the one it deems more appropriate for the case at hand.’ In his opinion, Judge Friendly contrasted a series of Supreme Court cases ‘supporting the view that great deference must be given to the decisions of an administrative agency applying a statute to the facts and that such decisions can be reversed only if without rational basis’ with a separate and ‘impressive body of law sanctioning free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term.’"^[8]

Bamzai cited Alexander Hamilton in The Federalist about how the courts were responsible for interpreting laws and not Congress: “Hamilton considered, but rejected, the possibility that the political branches would fill in the ambiguities in the Constitution’s text. He addressed the likelihood that the ‘[l]egislative body [would] themselves [be] the constitutional judges of their own powers,’ making the ‘construction they put upon them . . . conclusive upon the other departments.’ He rejected that view as not being ‘the natural presumption, where it is not to be collected from any particular provisions in the Constitution.' In light of the Constitution’s separation of powers, Hamilton noted, it would be 'far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority,' with '[t]he interpretation of the laws [as] the proper and peculiar province of the courts.'"^[8]

Bamzai cited Alexander Hamilton and James Madison in The Federalist saying that they thought constitutional ambiguity would diminish over time as case law built up.^[8] He writes, “[B]oth Madison and Hamilton adopted the proposed solutions to the problem of legal ambiguity advocated by seventeenth- and eighteenth-century legal theorists. They stressed, in other words, the role of custom and contemporaneity in construing those parts of the Constitution’s text that may otherwise be susceptible to a range of permissible interpretations. In the words of Hamilton, customary practice that developed over time would ‘liquidate the meaning’ of the Federal Constitution. Or as Madison put it, the meaning of constitutional provisions would be ‘liquidated and ascertained by a series of particular discussions and adjudications.’”^[8]

Bamzai writes “But the proposition that Chevron has a basis in traditional interpretive methodology, the views of the Framers of the United States Constitution, or section 706 of the Administrative Procedure Act should be abandoned—that proposition is a fiction. To be sure, the canons of construction with which the Framers of the Constitution and the lawyers of the nineteenth century would have been familiar—those privileging customary and contemporary interpretations of legal texts—use terminology that bears a passing resemblance to the words now used to articulate the concept of Chevron deference. But those canons were far removed from Chevron, both in spirit and in application. The true story of the origins of judicial deference is that the current doctrine, as an interpretive theory, originated much later—during the twentieth century—out of a desire to abandon the formalism of the traditional framework.”^[8]

Claim: Precedents establishing the scope of the writ of mandamus cut against the Chevron doctrine[edit]

Those who make this claim argue that deferential 19th-century court precedents dealing with writs of mandamus focused on the conditions necessary for the court to intervene and not the correct interpretation of various laws. On this view, the court was discussing when to issue a writ of mandamus and not explaining how courts should treat conflicting interpretations of the law.

Aditya Bamzai writes, “Nor was nineteenth-century mandamus practice based on any interpretive methodology that required judicial deference to the executive qua executive. While the modern reader may hear echoes of Chevron in mandamus—because the mandamus standard precluded judicial intervention when an executive official engaged in an ‘executive duty’ (including statutory interpretation) that required the exercise of judgment and discretion—the analogy is mistaken.”^[8]

Bamzai writes, “[T]he nineteenth-century cases addressing the scope of the mandamus writ support the contrary proposition. Those cases distinguished between, on the one hand, the standard for obtaining the writ and, on the other, the appropriate interpretive methodology that would be applied in cases not brought using the writ.”^[8]

Bamzai cited Decatur v. Paulding (1840) to argue that mandamus precedent did not establish Chevron-style judicial deference. He writes, “Chief Justice Taney’s opinion made clear, however, that the standard for mandamus applied in Decatur was distinct from the appropriate methodology for interpreting statutes in non-mandamus cases: ‘If a suit should come before this Court, which involved the construction of any of these laws,’ the Chief Justice reasoned, ‘the Court certainly would not be bound to adopt the construction given by the head of a department.’ To the contrary, in such cases, the Justices would be bound to determine whether the executive official’s ‘decision’ was ‘wrong’ and ‘of course, so pronounce their judgment.’"^[8]

Bamzai argued that the mandamus standard looked like Chevron deference because of the kind of relief requested, not as the result of interpretive theory. He writes, “The critical point of the foregoing analysis is that because federal courts lacked general federal-question jurisdiction before 1875, many statutory questions could be resolved only in the context of a mandamus action brought against an executive official. In mandamus proceedings, courts applied the mandamus standard. Following Decatur, the mandamus standard afforded great leeway to executive discretion in interpreting legal text—akin, in some respects, to the zone of interpretive discretion under the modern Chevron doctrine. But application of the mandamus standard was a consequence solely of the form of relief requested, not the consequence of the interpretive theory used. Therefore, a change in positive law on the cause of action would necessitate the abandonment of the mandamus standard. The Court’s use of de novo review in non-mandamus cases made that clear, as did Chief Justice Taney’s opinion in Decatur itself. As the Chief Justice explained, '[T]he Court certainly would not be bound to adopt the construction given by the head of a department' in non-mandamus cases over which the federal courts had jurisdiction, but rather would have the 'duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them.' Thus, when the general federal-question-jurisdiction statute in 1875 gradually eliminated the need to rely on mandamus jurisdiction to challenge executive action, the mandamus standard and Decatur line of cases became less relevant.”^[8]

Christopher J. Walker summarizes Bamzai to question Scalia’s use of precedent to defend Chevron.^[4] He writes, “Bamzai concludes that Chevron deference finds no historical support from nineteenth-century mandamus doctrine and practice: ‘Those cases distinguished between, on the one hand, the standard for obtaining the writ and, on the other, the appropriate interpretive methodology that would be applied in cases not brought using the writ.’ This finding is significant because it suggests that Justice Scalia may have been mistaken in relying on those cases as historical justification for Chevron deference in his Mead dissent and Mortgage Bankers concurrence.”^[4]

Claim: The APA was created with the idea that questions of law would be subject to de novo judicial review and limit judicial deference[edit]

According to this claim, Congress drafted the Administrative Procedure Act (APA) with the idea that courts would review questions of law for themselves and not defer to interpretations made by agencies.

Antonin Scalia argued in a speech that one reason the APA exempts interpretive rules from notice-and-comment procedures is that the Senate believed those interpretations were subject to plenary judicial review.^[7] He says, ‘[...] one provision of the Administrative Procedure Act (APA) itself seems to have been based upon the quite mistaken assumption that questions of law would always be decided de novo by the courts.” Scalia said that assumption was untrue by 1989.^[7]

Aditya Bamzai writes that Congress passed the “APA in 1946 in part to stop this deviation from the traditional interpretive rules and to recapture the interpretive methodology that prevailed before the Court’s experimentation with the law-fact distinction during the 1940s. The APA’s text, drafting history, and early scholarly interpretations all point in this direction: they suggest that Congress sought to cabin the discretion that the Court had recently granted administrative agencies. But the APA’s text and drafting history were quickly forgotten.”^[8]

Bamzai writes, “Against the backdrop of the historical development of the law of judicial deference, however, the meaning of section 706 is easier to discern. The most natural reading of section 706—one that has, to my knowledge, heretofore escaped scholarly or judicial attention—is that the APA’s judicial review provision adopted the traditional interpretive methodology that had prevailed from the beginning of the Republic until the 1940s and, thereby, incorporated the customary-and-contemporary canons of construction. In other words, when Congress enacted the APA, it did in fact incorporate traditional background rules of statutory construction. It did not, however, incorporate the rule that came to be known as Chevron deference, because that was not (at the time) the traditional background rule of statutory construction. Under the traditional approach, a court would ‘respect’—or, to use modern parlance, ‘defer to’—an agency’s interpretation of a statute if and only if that interpretation reflected a customary or contemporaneous practice under the statute.”^[8]

Bamzai writes, “Congress specified the proper scope of judicial review of executive legal interpretations when it provided in section 706 of the APA that a ‘reviewing court shall decide all relevant questions of law’ and ‘interpret constitutional and statutory provisions.’ The canon of construction that Chevron announced can be justified only if it is an appropriate gloss on Congress’s articulation of the proper standard of review in section 706 of the APA.”^[8]

Bamzai cited Antonin Scalia from Perez (2015) against Auer deference.^[8] He writes, “More recently, in a separate concurrence in Perez v. Mortgage Bankers Ass’n, Justice Scalia observed that the APA ‘contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations’ and that the Court’s ‘elaborate law of deference to agencies’ interpretations of statutes and regulations’ was ‘[h]eedless of the original design of’ section 706.”^[8]

T.J. McCarrick writes, “Textualist and originalist critiques of administrative deference largely rest on the following rationales: (1) Chevron flatly contradicts the plain text of the Administrative Procedure Act (APA), which empowers courts—not agencies—to interpret statutory provisions; and (2) Chevron violates the separation of powers as originally understood.”^[6]

Claim: Deference abandons a legal-interpretive tradition dating to 17th-Century English courts[edit]

According to this claim, later systems of judicial deference ignored the practice of interpreting ambiguous laws by deferring to contemporaneous and longstanding interpretations of those laws.

Aditya Bamzai argues, “But the smaller size and dissimilar ambitions of the seventeenth-century English state did not eliminate the need for English judges to interpret ambiguous legal text. Rather than adopting a Chevron-like framework, however, judges adhered to customary canons of construction in the face of statutory ambiguity. Two of those canons—the contemporanea expositio [contemporary exposition] and interpres consuetudo [consistent interpretation]—were central to the development of judicial deference.”^[8]

Claim: The use of Chevron deference to defer to an agency’s informal adjudication procedures denies due process[edit]

Supporters of increased due process protections in agency adjudication claim that judicial deference to an agency's interpretation of the adjudication procedures it is required to follow is not a proper exercise of deference. Agencies generally seek out informal adjudication procedures because they are less stringent than formal adjudication procedures, according to this claim. Supporters claim that judicial deference to such interpretations further weakens due process protections for individuals.

Administrative law scholar William Funk described this claim in his 2017 article "Slip Slidin' Away–The Erosion of APA Adjudication." Funk argued that Chevron deference is applied incorrectly when it is used to defer to an agency's interpretation of its adjudication requirements:

“In Chemical Waste Management, Inc. v. EPA, the D.C. Circuit accepted EPA’s argument that an APA adjudication was not necessary before issuing certain corrective action orders under 42 U.S.C. § 6928(h), notwithstanding that the statute required a 'public hearing.' EPA maintained that this provision was ambiguous as to what sort of procedure should be used in the hearing, and that its interpretation that an APA adjudication was not required was reasonable. … As this author and others have commented, applying Chevron to the question whether an adjudication is required to follow the APA procedures is an incorrect application of Chevron.”^[15]

Funk claimed that agencies seek to use informal adjudication whenever possible and judicial deference to such decisions allows agencies to further erode individual due process protections:

“Nevertheless, the use of Chevron appears to have become the dominant judicial approach to discerning when an APA adjudication is required, with only the Ninth Circuit still outstanding. Of course, agencies almost always will seek non-APA adjudications if given the opportunity, and the result is a further erosion of APA adjudications.”^[15]

Deference is the product of bad jurisprudence[edit]

This argument says that deference comes from judges applying an improper methodology to legal and regulatory interpretation. The following claim develops the argument.

Claim: Nineteenth-century court respect for customary interpretation was not the same as Chevron deference[edit]

According to this claim, Chevron deference given to agency interpretations of ambiguous laws because those interpretations were made by the agency is different from the respect earlier judges paid to longstanding and contemporaneous interpretations of ambiguous laws.

Aditya Bamzai writes, “Although Chevron can claim an analog of sorts in early nineteenth-century cases about interpretive methodology, those cases addressed the ‘respect’ that was due to executive interpretation because of the interpretation’s nature—specifically, its articulation contemporaneous with the enactment of the controlling legal text or its ability to demonstrate a customary practice under that text.”^[8]

Bamzai writes, “[T]he prevailing interpretive methodology of nineteenth-century American courts was not a form of judicial deference, as it has come to be understood in the post-Chevron era. Under the traditional interpretive approach, American courts ‘respected’ longstanding and contemporaneous executive interpretations of law as part of a practice of deferring to longstanding and contemporaneous interpretation generally. It was the pedigree and contemporaneity of the interpretation, in other words, that prompted ‘respect’; the fact that the interpretation had been articulated by an actor within the executive branch was relevant, but incidental.”^[8]

Bamzai writes that Edward’s Lessee deference was not the same as Chevron.^[8] He states, “The clearest sign that Edwards’ Lessee announced a doctrine of deference to contemporaneous and customary interpretations, not a doctrine of deference to executive interpretations, is that the principle in the case was repeatedly invoked to reject the executive branch’s changed construction of a statute and to require that statutory interpretation be consistent and uniform—and, hence, customary or contemporaneous with enactment.”^[8]

Footnotes[edit]

[loud-1] UNLV William S. Boyd School of Law Legal Studies Research Paper, "Loud and Soft Anti-Chevron Decisions," September 9, 2017

[siegel-2] 2.0 ^2.1 ^2.2 ^2.3 ^2.4 Jonathan R. Siegel, "The Constitutional Case for Chevron Deference," Vanderbilt Law Review, Vol. 71 (2018)

[hamburger-3] Philip Hamburger, "Chevron Bias," The George Washington Law Review, Vol. 84, No. 5 (September 2016)

[walker-4] 4.0 ^4.1 ^4.2 ^4.3 ^4.4 ^4.5 ^4.6 Christopher J. Walker, "Attacking Auer and Chevron Deference: A Literature Review," The Georgetown Journal of Law & Public Policy, Vol. 16 (2018)

[rao-5] Neomi Rao, "Administrative Collusion: How Delegation Diminishes the Collective Congress," New York University Law Review, Vol. 90, No. 5 (2015)

[tj-6] 6.0 ^6.1 ^6.2 ^6.3 T.J. McCarrick, "In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron," San Diego Law Review (2018)

[scalia-7] 7.0 ^7.1 ^7.2 ^7.3 ^7.4 Antonin Scalia, "Judicial Deference to Administrative Interpretations of Law," Duke Law Journal, Vol. 1989, No. 3 (1989)

[bamzai-8] 8.00 ^8.01 ^8.02 ^8.03 ^8.04 ^8.05 ^8.06 ^8.07 ^8.08 ^8.09 ^8.10 ^8.11 ^8.12 ^8.13 ^8.14 ^8.15 ^8.16 ^8.17 ^8.18 ^8.19 ^8.20 ^8.21 ^8.22 ^8.23 ^8.24 ^8.25 Aditya Bamzai, "The Origins of Judicial Deference to Executive Interpretation," The Yale Law Journal, Vol. 126, No. 4 (Feb. 2017)

[farina-9] 9.0 ^9.1 ^9.2 Cynthia R. Farina, "Statutory Interpretation and the Balance of Power in the Administrative State," Columbia Law Review, Vol. 1989 (1989)

[cornell-10] Cornell Law School LII, "Mandamus," accessed March 12, 2019

[woolhandler-11] 11.0 ^11.1 Ann Woolhandler, "Judicial Deference to Administrative Action—A Revisionist History," Administrative Law Review, Vol. 43, No. 2 (Spring 1991)

[mashaw-12] Jerry Mashaw, "Administration and “The Democracy”: Administrative Law from Jackson to Lincoln, 1829-1861," The Yale Law Journal, Vol. 117, No. 8 (June 2008)

[sunstein-13] Cass R. Sunstein, "Law and Administration after Chevron," Columbia Law Review, Vol. 90, No. 8 (December 1990)

[merrill-14] Thomas Merrill, "Judicial Deference to Executive Precedent," The Yale Law Journal, Vol. 101 (1992)

[funk-15] 15.0 ^15.1 Penn State Law Review, "Slip Slidin' Away—The Erosion of APA Adjudication," 2017

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