By Jody Freeman and Andrew Mergen
This post responds to New York Times columnist David French, who argued in a recent column that the Supreme Court should overrule Chevron v. NRDC when it decides Loper Bright v. Raimondo and Relentless v. Dept. of Commerce, two cases the justices heard on January 17.
French’s column was paired with a guest essay we wrote, which had appeared in the online version of the newspaper a few days before, analyzing the oral argument in the two cases and suggesting that the Court ought not to overturn Chevron out of respect for precedent and judicial humility. We didn’t know, however, that when our essay would run again in Monday’s print edition, it would be paired with French’s, so we didn’t have an opportunity to directly engage his arguments.
We think it important to do so.
We agree with Mr. French that Congress isn’t doing its job. But we disagree with the bulk of his argument, for example, his claim that Chevron magnifies presidential power “beyond all recognition” and that the president has “extraordinary dominance” because of it, or that Chevron is somehow responsible for Congress shirking its responsibility.
Of course, Congress should do its job, but cutting back on deference to agencies is not going to make that happen. The real cause of Congress’ utter dysfunction is House and Senate (but especially Senate) rules that make passing legislation exceedingly difficult, including rules that prevent bills from moving out of congressional committees and the Senate filibuster rule, which requires 60 votes to invoke “cloture” and end debate on bills, among others. Congress could change these rules and legislate far more expeditiously if it wanted to.
Overruling Chevron does not rebalance power between the president and Congress, by “roll[ing] back the president’s extraordinary dominance” as French claims. That assertion is premised on the highly disputable — and we think patently wrong — claim that the deference required by the principle established by Chevron (which applies only when a statutory provision is ambiguous or silent and the agency offers a reasonable interpretation), somehow prevents Congress from using its substantial powers to check the president’s use of executive authority via his agencies.
In reality, Congress has many tools to control agency action and counterbalance presidential power, including a fast-track process that allows a simple majority of Congress to cancel regulations before they take effect. Congress can also refuse to confirm agency officials whom the president nominates, defund an agency or a targeted part of its work, and amend the statute if it disagrees with how an agency is administering it.
Far from making Congress do its job, the most direct effect of jettisoning Chevron is to strengthen the judiciary. And the greatest beneficiary of this judicial concentration of power is likely to be big business. Historically, studies have shown that large incumbent corporations have the most to gain from litigation in the federal courts.
Even if they did not, overturning Chevron is bad for democracy, not good for democracy as French claims. As a practical matter, because Congress cannot anticipate or address with sufficient specificity every interpretive issue that might arise over time, overturning Chevron would mean that the judiciary, and especially the Supreme Court — not Congress — will more often have the last word on many important questions of policy (or mixed law and policy) that arise under federal law.
As one of us has argued elsewhere, “one of the most important justifications for the Chevron doctrine is the recognition that where Congress has not expressed itself clearly, resolution of an interpretive question inevitably involves a discretionary policy judgment, and it is more democratic for such decisions to be made by agencies — which are part of an executive branch headed by an elected president, and subject to ongoing oversight by Congress — rather than by unelected judges.”
Agencies do not operate unilaterally or beyond legal constraints as French’s argument implies. Agencies are in fact highly accountable to multiple overseers. In addition to the formal and informal tools Congress possesses to keep them in check, agencies are the most transparent policymakers in the federal government.
The Administrative Procedure Act requires them to follow a highly public “notice and comment” process before issuing rules, during which they must solicit and respond to input from regulated entities. Agencies must also explain their final decisions with detailed reasons and produce supportive empirical, scientific, economic, and technological evidence that courts review.
In sum, an agency is only entitled to Chevron deference if it follows the notice and comment process, survives the congressional review process that entitles a simple majority to “disapprove” the rule, and when the agency offers a reasonable interpretation that aligns with the statute’s terms and design. And that only happens after a court determines the statute’s meaning is unclear.
Chevron simply cannot be responsible for the “titanic” administrative state or the imperial presidency. It is by now a modest but still important principle that calls for judicial humility in the face of ambiguous congressional delegations of authority to expert agencies tasked with putting laws into effect.
It is true that Chevron gives executive agencies room to change their mind about the same policy in some circumstances, but this is not always a bad thing, and presidents are accountable for those shifts. The more high-profile and controversial those policy switches are, the greater likelihood they will be taken up by the Supreme Court, which has shown no hesitation in reining them in. There is no need to overturn Chevron to address these relatively few instances.
French portrays all agencies as doing the bidding of presidents who can act on a whim. For example, he implies that the fisheries rule being challenged here was adopted because of “presidential ideology.” In fact, industry had a significant role in developing the rule requiring boat owners to pay the daily rate for onboard monitors. A regional fishery management council first proposed it and then sent it to the National Marine Fisheries Service, the supervising agency, for approval. That is how the fisheries conservation law works. It requires the agency to consult extensively with industry, which is another reason why courts should give such rules considerable deference.
In addition, agencies sometimes resist presidential power and act as a constraint on whimsy. Regulatory agencies like the Securities and Exchange Commission and Federal Trade Commission perform critical functions at some remove from the president, which is why they are called “independent.” For example, the Federal Energy Regulatory Commission refused to go along with an uneconomic Trump plan to boost coal by paying it more in wholesale markets.
French suggests that Congress should have more power than the president, but that is at odds with our constitutional system in which the branches have different kinds of power. Congress legislates but the executive branch executes the law. And execution must include at least some policy discretion, which is what the Chevron principle protects.