Administrative Overreach, Enabled By Courts

A central challenge before the Supreme Court is to reconcile the growth of the modern administrative state with the rule of law, which generally requires the government to offer its citizens a set of clear and consistent directives. Modern administrative agencies enjoy vast discretion to implement complex schemes, and their power is backed by heavy legal sanctions. These sanctions apply to developers of long-term projects, who need a stable legal regime from start to finish, without being held hostage to the risk of political flip-flops every time agency control passes from Democrats to Republicans, or vice versa.

On this point, a critical Supreme Court rule known as the “Chevron” principle has recently come under sustained attack. Named after the famous 1984 decision in Chevron v. National Resources Defense Council, it holds that when a federal statute is ambiguous under the ordinary rules of statutory construction, a court ought to defer to the interpretation of the statute made by the relevant administrative agency. Chevron is commonly regarded as the rock on which the modern administrative state rests, giving agencies a huge advantage when their activities and regulations are challenged in court. Yet it has been attacked recently by Justice Neil Gorsuch and Judge Brett Kavanaugh as an unprincipled abnegation of the judicial function. Gorsuch and Kavanaugh argue that Chevron effectively grants executive branch officials the authority to interpret laws, a role that the Constitution reserves to the judicial branch and ultimately the Supreme Court.

Their critique is correct. First, Section 706(a) of the Administrative Procedure Act (APA) says explicitly that “the reviewing court shall decide all relevant questions of law,” most obviously disputes over statutory interpretation. Thus, even aside from the constitutional question, Chevron is precluded by statute. Inexplicably, Justice John Paul Stevens’ Chevron opinion never cites that section of the APA, but instead discusses how politically accountable administrative officials have greater expertise and knowledge to lay down rules in their own bailiwicks than do generalist judges. Admittedly, his decision was a manifest improvement over the freewheeling approach to administrative law of the Circuit Court for the District of Columbia, which had direct oversight over most administrative agencies.