Ending Chevron Deference in the States

The Supreme Court's controversial 1984 decision in Chevron v. Natural Resources Defense Council requires federal judges to defer to administrative agencies' interpretations of federal laws that the latter administer, so long as Congress has not clearly addressed the issue in question, and the agency's view is "reasonable." Many conservatives and libertarians have long sought to overturn Chevron, and some hope that doing so will seriously constrain the administrative state. By contrast, defenders of Chevron (many of them on the political left) fear that overruling it would greatly hamper regulatory agencies, and prevent them from using their expertise effectively.

So far, at least, the Supreme Court has not been willing to overturn Chevron, though it has issued a number of decisions limiting its reach. But as my co-blogger Jonathan Adler notes in a recent article for the Brennan Center, many states have barred such deference to agencies when it comes to their state law. Jonathan discusses a recent Ohio Supreme Court decision holding that deference to agencies is only permissible if a statute is ambiguous, and even then never mandatory.

In another recent article (coauthored with Bradyn Lawrence), my wife Alison Somin (an attorney with the Pacific Legal Foundation), defends a proposed Nebraska law that would ban judicial deference to agencies in that state. The bill may well pass in the near future.

As Jonathan notes, Ohio is just one of many states that have either banned judicial deference to agencies or severely constrained it. The list isn't limited to conservative red states like Utah and Florida. It also includes the blue state of Delaware (a longtime rejector of deference) and purple states such as Michigan, Arizona, and Wisconsin. Some of these states restrict deference by state supreme court decision, others by legislation or the enactment of constitutional amendments.

The results of these state-level experiments should temper both hopes and fears associated with ending Chevron deference at the federal level. Ending or restricting judicial deference to agencies hasn't gutted the administrative state in any of these jurisdictions or even come close to it. Neither has it ended the use of agency expertise on regulatory issues and turned over policymaking to ignorant yahoos (or at least the yahoos don't seem to have much more influence than they would have otherwise). The no-deference and low-deference states have not become libertarian utopias (or dystopias, depending on your point of view).

So far, at least, the state experience reinforces points I made back in 2018 about the limited impact of ending Chevron deference:

[M]any people tend to forget that the Supreme Court only decided the Chevron case in 1984, and we had a large and active administrative state long before then. Somehow, the powerful agencies established in the Progressive era, the New Deal, the Great Society, and the Nixon administration managed to survive, thrive, and regulate without Chevron.

Pre-Chevron administrative agencies did enjoy the benefit of less extensive forms of judicial deference, such as "Skidmore deference." Those would likely persist even if Chevron were to be severely limited or overruled. But even if the Supreme Court were to completely eliminate judicial deference to administrative agencies' interpretations of federal law (thereby treating them the same as any other litigant), the latter would still wield enormous discretionary power. In a world where there are far more federal laws than any administration could hope to effectively enforce, they would still have broad discretion to determine which violators to go after, and how aggressively. They would also retain control over a broad array of technical questions….

Even on the specific question of interpretation of statutory law, the elimination of formal deference probably would leave in place a good deal of deference in practice. Across a wide range of issues, generalist judges seeking to manage large case-loads may still give special weight to the views of supposedly expert agencies, even if they are not formally required to do so. This is especially likely to happen when it comes to questions that are highly technical and not ideologically controversial….

To the extent that ending Chevron would put agencies on a tighter leash, it is far from clear that this would necessarily benefit the political right more often than the left. As my VC co-blogger (and leading administrative law scholar) Jonathan Adler points out in a New York Times article, a reduction in judicial deference could stymie deregulatory policies as readily as those that increase regulation. The Chevron decision itself deferred to a Reagan administration policy that shifted air pollution regulation in ways decried by environmentalists….

In policy areas such as immigration and drug prohibition, most conservatives—especially since the rise of Trump—actually favor more regulation than most of the left does. Pereira v. Sessions, one of the Supreme Court's recent decisions cutting back on Chevron deference, strikes down a policy that sought to make it easier to deport immigrants. The same is true of then-Judge Gorsuch's most famous lower court opinion criticizing Chevron.

But there are still likely to be important benefits to ending or at least curbing this form of deference. As Alison points out, doing so is a matter of basic fairness in the judicial process:

Chevron and its state clones require judges to abandon their traditional role as umpires who call balls and strikes. Instead, they require judges to put a thumb — and in some cases, more like an anvil — on the scales in favor of the government.

The Nebraska bill would reject the presumption in favor of agency interpretation with one in favor of one preserving liberty in cases where the law is vague. For reasons Alison outlines, this would be a beneficial change. But it is not entailed merely by barring judicial deference to agencies. It requires additional legislation, like the relevant provision of the Nebraska bill (or application of a constitutional rule to the same effect).

In addition to promoting more impartial adjudication, getting rid of Chevron deference  can reduce partisan swings in legal interpretation, and end judicial abdication of duty. I summarized these points in my 2018 post:

Ending Chevron deference would not gut the administrative state…. It would, however, have some important beneficial effects. It would put an end to what then-Judge—and future liberal Supreme Court justice—Stephen Breyer, writing in 1986, called an "abdication of judicial responsibility." Neil Gorsuch expressed similar views more recently, calling Chevron "a judge-made doctrine for the abdication of the judicial duty." The Constitution gives judges, not agency bureaucrats, the power to interpret federal law in cases that come before the courts….

The elimination of Chevron would also increase the stability of legal rules, and make it harder for administrations to play fast and loose with the law. As Gorsuch pointed out in a well-known opinion he wrote as a lower court judge, Chevron deference often enables an agency to "reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court]." When the meaning of federal law shifts with the political agendas of succeeding administrations, that makes a mockery of the rule of law and undermines the stability that businesses, state governments, and ordinary citizens depend on to organize their affairs. A new administration should not be able to make major changes in law simply by having its agency appointees reinterpret it.