UC Berkeley law professors view future of landmark Chevron deference

By Erik Derr | Aug 3, 2016

ARLINGTON, Va. – The U.S. Supreme Court's apparent recent retreat from its deference to the statutory interpretations of governmental agencies is causing concern, scholars said at an administrative law conference in June hosted by George Mason University's Center for the Study of the Administrative State. The event was held at the Antonin Scalia School of Law, newly dubbed in honor of the late Supreme Court justice.

The so-called "Chevron deference," named after Chevron U.S.A. Inc. v. Nat. Res. Def. Council Inc., "is the concept that if a statute in unclear or ambiguous, courts might defer to an agency's interpretation of the law," Eric Biber, a professor at the University of California, Berkeley School of Law with an emphasis on environmental law, told the Northern California Record. "You see that in any case where you have a statute that is being implemented by an administrative agency, so it happens in environmental law, securities law, communications law, health law."

Lately, however, the high court has seemed less willing to use the Chevron deference in certain cases, said conference presenters. For example, the court refused to defer to the Internal Revenue Service's interpretation of the Affordable Care Act in King v. Burwell.

According to a piece published by Bloomberg, the court explained it didn't use Cheveron deference in King because “this is not a case for the IRS." The court went on to say the deference assumes the authority to "fill in the statutory gaps" has been delegated to an agency by Congress, but, because the ACA case was so “extraordinary," deference wasn't appropriate.

Daniel A. Farber, another Berkeley law school professor and a participant at the Mason conference, suggested in the same Bloomberg story that, by opting not to employ Chevron deference, the justices revealed a lack of humility toward the presumed expertise of agencies.

Furthermore, Farber told Bloomberg, the Supreme Court is more willing to impose its own views on questions of statutory interpretation, although in the King case it had “far less expertise” than the IRS.

Farber echoed the opinions of others at the conference when he said the court's lack of reliance on Cheveron deference in King proved its justices are “far more removed” from being accountable within a democratic system.

Biber said there's been a "long debate" about if Chevron deference "is an important or good thing in administrative law."

Whether one supports or opposes the application of the deference "depends on what you think the role of agencies are verses courts in interpreting and applying law in complicated regulatory areas," he said. "The argument for deferring to agencies is that they have more expertise than courts. Agencies will have economists and scientists, as well as lawyers and engineers on staff, and judges are just lawyers."

Also, said Biber, "agencies are responsible to the president, who is an elected official, whereas federal judges are not elected at all."

Meanwhile, limited-government groups have decried the recent ruling by the U.S. Court of Appeals for the D.C. Circuit that upheld nearly all of the Federal Communications Commission's decisions regarding the reclassification of broadband internet access as a Title II service under the Communications Act, and therefore subject to common-carrier regulations.

The D.C. Circuit didn't issue a decision on the wisdom of the reclassification in the open internet order, but only on whether the FCC had the authority to regulate internet access under the current statute.

Tech Freedom, the Taxpayer Protection Alliance, Less Government and other special-interest groups said in a letter that Congress needed to better monitor the alleged "regulatory overreach” of the open internet and other orders.

The groups called on lawmakers to pass the Separation of Powers Restoration Act (SOPRA) a Republican-backed effort to “clarify that the Administrative Procedure Act requires courts to conduct a new review of relevant questions of law when evaluating agency regulations - rather than simply deferring to the agency’s judgment.”

SOPRA "would prevent administrative agencies from effectively rewriting legislation to suit their purposes - often driven by politics - and restore legislative power to the American people’s elected representatives in Congress, ” the groups said in the letter.

The Republican-controlled U.S. House of Representatives passed the Separation of Powers Restoration Act of 2016 in close to a party-line vote a few weeks ago. The bill is now before the Senate Judiciary Committee.

Vikram David Amar, the Iwan Foundation Professor of Law and the Dean at the University of Illinois College of Law, notes in a recent piece published in Verdict, a commentary section of the Justia legal resource website, that "the political parties’ views about the proper constitutional roles of the three branches of the federal government seem to depend [on] who occupies or is likely to occupy the White House for the foreseeable future."

Indeed, said Biber, the Chevron doctrine "was developed in the 1980s by the Supreme Court when it was, still as now, mostly conservative" and it was responding to efforts by Congress, which back then had a Democrat majority, "to restrain the implementation of, in particular environmental laws, by President Reagan."

But, today, "it's flipped, right? We have a Democratic president and a Republican congress," he said, "So, I'm not so surprised a conservative court is becoming a little skeptical of Chevron."

Ultimately, said Biber, the future of Chevron will be determined by the nation's next president and new Supreme Court justice.

"It depends on who replaces Scalia."

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