3-2017 NEWS & ANALYSIS 47 ELR 10187
Plan case in the U.S. Court of Appeals for the District of
Columbia (D.C.) Circuit as a case like that.8 You can think
of lots of cases like that, including the cases you mentioned.
In a dierent world, I think the issue that was before the
Supreme Court in would have been xed as a routine
matter in the give-and-take of the legislative process, with
clarifying language added to some appropriations bill or
something. However, because of the kind of gridlock and
conict we have, there wa s no way that wa s going to hap-
pen, therefore, that issue was forced before the court.
Sometimes, it’s going to be issues like that. One cate-
gory of issues is going to be like that where under normal
circumstances, questions of statutory authority would get
worked out through the legislative process and claried,
and there would be no need for t he judiciary to have the
last word on it. Other times, it will be situations where
there is genuine policy gridlock, and the executive branch
is going to make an eort.
at shouldn’t surprise anybody. I’m not advocating
this as a state of aairs. It would be a lot better if Con-
gress actually played the role it’s supposed to play in our
constitutional system. But given that it’s not, it’s unreal-
istic to think t hat an executive branch is going to sit on
its hands rather than t ry to confront the problems of the
country. And I think that’s probably true of an executive
of either party.
As a result, I think the c ases that are going to be t he
most important cases before the Supreme Court, now and
in the upcoming years, are going to be cases that raise fun-
damental administrative law questions like the k ind we’re
going to talk about.
Jody Freeman: at is a perfect segue to the topic of doc-
trines of judicial review and questions about how they will
evolve in the future. ere has been a lot of provocation
about Chevron9 recently, for example. Likewise, what is
known as deference may be in for some changes.10
ere is a lot of talk, as well, about cases like 11 and
Hawkes,12 which raises the question of whether preenforce-
ment review of agency compliance orders will have signi-
cant ripple eects for the agencies. All of these things are in
the mix at the moment—very much alive in the courts and
also of considerable interest to scholars, and I am imagin-
as follows: “e judgment is armed by an equally divided Court.”
8. e “clean power” case refers to the consolidated set of actions challenging
EPA’s Clean Power Plan rule. Carbon Pollution Emission Guidelines for
Existing Stationary Sources: Electric Utility Generating Units; Final Rule,
80 Fed. Reg. 64661 (Oct. 23, 2015). Challenges to the Clean Power Plan
are currently being considered by the U.S. Court of Appeals for the D.C.
Circuit. West Virginia et al. v. Environmental Prot. Agency, No. 15-
1363 (D.C. Cir. 2015).
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
ELR 20507 (1984).
, 519 U.S. 452
interpretation of its own ambiguous regulation is generally entitled to
deference unless “plainly erroneous or inconsistent with the regulation.”
ing of concern to the audience here. I think in the coming
years, as the agencies do precisely what Solicitor General
Verrilli predicted they will do, which is be a productive
source of policymaking in the country, we’ll see a lot of
pressure on these doctrines of deference.
No one has missed that Chevron deference has come in
for some shoddy treatment of late—in cases like , -
.13 Lone judges or justices railing against
Chevron is nothing new. For example, Justice Clarence
omas seems to have declared wa r on Chevron, building
on an earlier opinion he wrote in the
case in which he assailed Chevron deference as an unconsti-
tutional transgression of the separation of powers.14 is is
slightly odd, if only because Justice omas a lso authored
the opinion in , which is perhaps the height of
modern judicial deference.15 ese more recent decisions
suggest that Chevron’s stability and durability may be in for
a greater test. e Supreme Court is either nding ways not
to apply Chevron, or applying it in name only, and granting
very little deference compared to what one might expect.
If we look more broadly, we see attacks aga inst Chevron
everywhere, from individual judges to legislators in Con-
gress. Judge Neil Gorsuch, on the U.S. Court of Appeals
for the Tenth Circuit, issued a recent and striking concur-
rence in the c ase in which he inveighed
against Chevron and its progeny, particularly ,
at great length, reviving an unreconstructed view of the
administrative state and t he separation of powers that
would unwind most of modern administrative law.16 At the
same time, we now routinely see regulatory reform bills
like the Separation of Powers Restoration Act introduced
in Congress, which, if passed, would override both
and Chevron deference in one fell swoop.
Now, one can regard all of this as political noise, and
not take it too seriously. It is surely true that when a part y
doesn’t possess the White House, it isn’t likely to be much
of a fan of Chevron, which allows the executive branch
some exibility to adapt statutes to their policy preroga-
tives. ose same vehement opponents of Chevron will
become its biggest fans if the White House changes hands.
So, you could say that Chevron is being bandied about like
a political football, but it doesn’t matter too much because
deference is here to stay.
But I do think there’s reason to take seriously what the
Chief Justice did in a mere two paragraphs in , which
was to take his d issent in 17—a case that
In , 531 U.S. 457, 487, 31 ELR 20512
(2001), Justice omas, in dissent, argues that the parties failed to address a
“genuine constitutional problem”—the failure of the parties to address the
constitutional grant of “‘[a]ll legislative Powers’ to Congress.”
, 545 U.S.
, 981 (2005), Justice omas writes that “[a]gency inconsistency is
not a basis for declining to analyze the agen cy’s interp retation under the
Gutierrez-Brizuela v. Lynch, 834 F.3d 1142
, 1143-49 (10th Cir. 2016).
17. City of Arlington, Tex. v. Federal Communications Comm’n, 135 S. Ct.
1863, 43 ELR 20112 (2013).
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.