Commentary: Trump’s Supreme Court may target federal rule-making, but the government will survive
Published 12:00 am Wednesday, August 8, 2018
Mere months ago, most practicing lawyers probably couldn’t define the “Chevron doctrine,” even if they had vague recollections from law school.
Now, Chevron’s everywhere. That’s because President Donald Trump’s choices for Supreme Court justices — Neil Gorsuch, on the high court, and Brett Kavanaugh, nominated — made it clear that they aren’t fans of the doctrine.
If Trump’s picks have their way, the doctrine will fall and Washington, D.C. will be irrevocably changed.
The end of the Chevron doctrine would “severely curtail the ability of future government(s) to meet the needs of the people,” according to a post on the legal website Verdict.
It would amount to “clear disdain for how government affects and improves the lives of regular Americans every day,” in the words of USC law professor Franita Tolson.
These fears are out of proportion.
They confuse the demise of a doctrine of statutory interpretation with the demise of regulatory and administrative agencies.
The Chevron doctrine is named for a 1984 Supreme Court decision, Chevron U.S.A. Inc. vs. Natural Resources Defense Council. Justices had to determine whether the Environmental Protection Agency under President Ronald Reagan could use more lenient standards to enforcement of the Clean Air Act than standards previously applied by President Jimmy Carter’s EPA.
They ultimately found the approach of Reagan’s EPA to be lawful.
What emerged as the Chevron doctrine was this principle: When a statute delegates interpretive authority to an administrative agency and the statute’s language is ambiguous, courts should defer to a reasonable understanding of that statute arrived at by the agency.
Deference often makes sense. Agencies are filled with experts who understand the nuances of the statutes assigned to them.
Interpreting the laws can involve policy decisions better made by officials accountable to the elected president than by unelected judges.
As Justice Antonin Scalia said, because Congress wrote these types of statutes with the expectation agencies would resolve ambiguities, courts should honor that.
Many find the Chevron doctrine useful. Judges like deferring to agencies on complicated interpretive questions, and administrators like being on the receiving end of deference because of the leeway it provides.
However sensible, it isn’t the only foundation for the “administrative state” — the sizable bureaucracy that implements the laws that regulate many facets of modern life. The EPA, the Federal Communications Commission, the Securities and Exchange Commission and others do not rely on Chevron for their existence.
The doctrine is a guide for narrow circumstances, at least when it is applied correctly.
If a court finds a statute to have delegated interpretive authority to an agency, and if the court deems the statute ambiguous, the court is to defer to the agency’s interpretation, so long as the court deems it reasonable.
Agencies already operate without receiving Chevron deference in a range of circumstances.
What would happen if the Chevron doctrine disappeared? Courts would do what they do in other circumstances of statutory interpretation: start from readings of the statute’s plain text and structure and apply long-standing legal maxims to decide meaning.
If a court agrees with the agency, the result would be no different from the result under Chevron. If it doesn’t agree, then in a post-Chevron era, the court’s interpretation would prevail.
Fundamentally, the Chevron doctrine cannot and should not be equated with the administrative state itself. To suggest the potential demise of Chevron is political hyperbole. If Chevron falls, government won’t disappear.
— Joshua A. Geltzer is the founding executive director of Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection.