Without deference.

• Author: Pojanowski, Jeffrey A.
• Position: Symposium: A Future Without the Administrative State? Exploring the Administrative State

1. INTRODUCTION

   This administrative state is here, and, absent radical and unlikely changes in the scope of federal power, it is not going away. The shape of the administrative state and its distribution of powers, however, may be less inevitable. This Symposium, A Future Without the Administrative State?, is therefore wise to consider the more modest question of whether there are reasonable alternatives to the Chevron doctrine.

   The Chevron doctrine requires courts to defer to administrative agencies' reasonable conclusions on questions of law. (1) Even as the case approaches middle age, it remains controversial. Many jurists and scholars see it as a salutary and natural outgrowth of administrative legal doctrine that recognizes the necessity of agencies' technical expertise and political accountability. (2) On the other hand, those of a more legalist bent--including those who accept, embrace, or reject the current scope of the regulatory state --blanch at the judiciary's abasement at the feet of administrators: Even if a dynamic and complex world requires policymaking more nimble than traditional legislatures can provide, it need not follow that challenging legal questions should go from the courts to administrators. (3) The prospect of rejecting Chevron is therefore more plausible than abandoning the administrative state as we know it. Accordingly, this contribution to the Symposium explores the implications of the doctrine's abandonment.

   To make the thought experiment most stark in contrast, I will imagine a future in which courts undertake de novo review of agency conclusions on questions of law. (4) To be clear, abandoning Chevron is not the same thing as abolishing deference. Deference of a different kind existed before Chevron, (5) and if the Court were to abandon Chevron tomorrow, the Court may revert to something like that preexisting, milder form of deference. (6) Nevertheless, imagining a regime without any deference clarifies the stakes of reforming judicial review of agencies' legal conclusions. Thus, for present purposes, and present purposes only, I equate abandoning Chevron with abandoning judicial deference on agencies' legal interpretations.

   I argue that such an alternative regime has appealing features but may not bring as much practical change as casual critiques or defenses of Chevron contemplate, at least immediately. The more immediate change would arise at the level of theory and rhetoric, which, in turn, may lead to greater practical changes in the longer run. The theoretical presuppositions underwriting a regime of non-deferential review are far more classical in cast than the moderate legal realism underwriting Chevron. Rejecting deference, therefore, would change how courts talk about the difference between law and policy in the administrative state. The resurrection of the classical distinction between interpreting and making law might therefore alter the way courts think about that relationship. If that is the case, rejecting deference could lead to a more robust judicial role on close questions of interpretation.

   Alternatively, some courts may already be quite aggressive on questions of interpretation, usually through a vigorous application of Step One. This is often the case, for example, at the Supreme Court. To the extent this is so, abandoning deference would bring the courts' skeptical rhetoric about the law/policy divide in line with their practice on the ground. This would reveal that interpreters are less skeptical about the line between law and policy than their rhetoric suggests. In short, it would show we are not, in fact, all legal realists now, at least with respect to problems amenable to the lawyers' traditional toolkit. Either way, the more traditional character of the theoretical orientation underwriting the case against deference may also shed light on the rise and (partial) fall of Chevron in administrative legal thought.

2. CHEVRON DEFERENCE AND ITS DISCONTENTS

   Judicial review of agencies' legal conclusions is one of the most vexing questions in administrative law. At the center of that storm is the Supreme Court's decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (7) In Chevron, the Court offered a now-famous two-step process for reviewing agency conclusions of law. (8) First, the reviewing court uses the ordinary tools of statutory construction to determine on a de novo basis whether Congress has spoken clearly to the question at issue. (9) If the court finds a clear answer to the question, that interpretation governs, irrespective of the agency's judgment. (10) If, however, the statute is unclear, the reviewing court must defer to an agency's interpretation that is reasonable, even if the court would have arrived at a different interpretation on its own. (11)

   The Chevron framework offers numerous puzzles: How clear is "clear" at Step One? (12) What tools of interpretation should a court use to find clarity? (13) What does it mean for an interpretation to be "reasonable" at Step Two? (14) How many steps does the Chevron two-step actually have? (15) To what kinds of legal interpretations does Chevron apply? (16) What standard of review applies when Chevron is not in play? (17) Should an agency get strong deference when it reverses its interpretation? (18) The Court's subsequent elaborations and applications of the doctrine only add further complexity. (19) Thus, Chevron is the case that launched a thousand scholarly ships. Increasingly, however, judges and academics have raised more fundamental questions about whether Chevron deference should exist at all.

   Skepticism about Chevron deference is not new, (20) but hostile rumblings from the Supreme Court have grown in the past few Terms. Leading the charge is Justice Clarence Thomas, who last year questioned Chevron's constitutionality. (21) But he is no lone voice in the wilderness. Chief Justice Roberts voiced discomfort with judicial abnegation to an ever-growing administrative apparatus. Although his complaints about deference running amok went unheeded in City of Arlington v. FCC, (22) he soon thereafter led a majority in King v. Burwell that withheld deference on questions of "deep 'economic and political significance.'" (23) In his final Terms on the Court, Justice Scalia's applications of Step Two could be so aggressive that one suspected his prior ardor for Chevron had begun to cool. (24) One such opinion, joined by the Chief Justice and Justices Alito, Kennedy, and Thomas, led one scholar to opine that Justice Scalia "may no longer be satisfied by any reasonable agency reading of ambiguous statutory language." (25) Finally, Justice Breyer's contextual, multifactor approach to Chevron in majority opinions like Barnhart v. Walton, as well as in separate opinions, suggest a return to deference doctrine in line with the more searching pre-Chevron regime. (26)

   Scholarly voices have joined the skeptical chorus as well. Professor Philip Hamburger describes Chevron as "notorious" and argues that deference is an "abandonment of judicial office" that unconstitutionally biases adjudication in favor of the government. (27) Professor Jack Beermann, who is far less hostile to the regulatory state than Hamburger, has nailed to the door of administrative orthodoxy ten theses in support of overruling Chevron. (28) Professor Aditya Bamzai offers a new, historically-grounded argument against Chevron's legal foundations. (29) And, more modestly, Professor Michael Herz argues that, while the strong form of Chevron envisioned by its champions is dead, a kinder, gentler style of Chevron reigns supreme. (30)

   Notwithstanding its importance, Chevron is unlikely a "super precedent" categorically protected from revision. (31) Still, it is not easy to count to five votes on the Court for deference skepticism, and it is rash to conclude that a few highly salient opinions capture a deeper trend. The most likely impact of the boomlet of Chevron dissensus is the preservation and proliferation of doctrinal safety valves courts can use to domesticate deference. Professor Herz claims, plausibly, that this is precisely where we have arrived. (32) But imagining alternative doctrinal futures is one of the tasks and luxuries of scholarship, and this Article asks what administrative law would look like if the courts explicitly disavowed deference to agency interpretations of law. If that vision is both appealing and practically workable, further pressing the envelope against deference seems worthwhile. If the cure is worse than the disease, however, perhaps, in the words of Professor Gary Lawson, we "should just shut up about Chevron." (33)

3. CONTINUITY

   Before discussing what about administrative law would change should the Court trade Chevron deference for de novo review of legal questions, we should first identify what would likely stay the same. Abandoning Chevron may not, in fact, change the frequency and extent of judicial deference as much as Chevron's critics hope or its supporters fear.

   First, and most obviously, review of legal interpretations that are not eligible for Chevron deference today would remain the same. Whether it is because the agency does not administer the statute in question or because its interpretation fails to get deference under Mead's multifactor test, many agency interpretations of statutes already receive de novo or less deferential review under Skidmore's standard. (34)

   Second, and more importantly, the impact of abandoning Chevron depends on how rigorously courts apply Step One today. Often, courts will use all the usual interpretive tools at their disposal and consider not only the provision at issue, but also the broader text and structure of the act and perhaps even other related or similar legislation. (35) Once a judge completes such a searching review and reaches a firm conclusion that one interpretation is stronger than other plausible ones, it may be hard to...