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The Ideological Warfare Behind the Attack on Chevron Deference: Part 2

Responsive Government Courts Defending Safeguards

This post is the second in a three-part series. Read Part 1 here. Read Part 3 here.

In this morning’s post (the first of a three-part series), I introduced the rapidly boiling legal battle over a once-obscure administrative law doctrine known as Chevron deference. Much of the commentary to this point has focused on the political motivations behind the conservative attack on Chevron deference. In this afternoon’s post, I will take a closer look at how conservatives have carefully crafted this battle (and their broader war on the administrative state) to promote their distinctive brand of ideological thought. (In the third and final post tomorrow, I will turn to how progressives can similarly use these battles to promote their own vision of a socially just future in the United States.)

First, one of the ulterior motives behind the attack on Chevron is to reinforce the ideological view that federal government action per se is presumptively illegitimate. Significantly in this regard, one major focus for the conservative Justices and attorneys arguing the case was the fact that Chevron deference, as currently understood, embraces implicit delegations of power to agencies to resolve questions over the scope of their statutory authority.

For example, Roman Martinez, representing the petitioners in Relentless, was quick to attack this aspect of Chevron deference, arguing in his opening statement that “this Court’s only justification for Chevron is the implied delegation theory, but that theory is a fiction.” Paul Clement, representing the petitioners in Loper Bright, pursued a similar line of attack: “I think express delegations show all the problems with this fictional implied delegation because the great thing about an express delegation is you have some text.”

The practical effect of these implicit delegations of authority is to accord legitimacy to a particular kind of government action — the exercise of decision-making discretion by agencies (i.e., by establishing a default in its favor). And this is precisely why conservatives find this aspect of the doctrine so objectionable. It runs directly counter to their categorical skepticism of all government action.

Accordingly, one of the desirable outcomes of ending Chevron deference for conservatives is that it would largely restrict the exercise of agencies’ interpretive authority to only those instances where it has been explicitly delegated by Congress. Indeed, establishing legal rules requiring explicit authorization for agency actions in this manner has long been a hobby horse of the conservative legal movement, beginning with the nondelegation doctrine and continuing more recently with the major question doctrine’s “clear statement” rule.

To be sure, traditional rule of law principles demand that all government actions spring from sources widely recognized as legitimate. Nevertheless, elaborate searches for legal justifications for agency actions, whatever precise form they might take, necessarily start from the conservatives’ preferred position of skepticism. And the subtle effect of these searches, particularly the longer they stretch on, is to further reinforce this skepticism and perhaps even to shroud the validity of all government actions in a fog of doubt.

Second, the anti-Chevron deference crusade has enabled conservatives to build up and maintain the illusion that an “us vs. them” dynamic necessarily defines the relationship between the public and their government. Indeed, as the underlying facts in Loper Bright and Relentless demonstrate, nearly every case involving the doctrinecan be framed as a confrontation between “we the people” and the government, as if it were some distant, alien “other.”

For example, Clement adopted this frame in exchange with Justice Elena Kagan when he portrayed these cases as pitting citizens against agencies. There he stated that “If I did believe [that the law could not provide a clear answer in a particular case], I would say at that point let’s give the tie to the citizen. Let’s not give the tie to the agency.”

This framing is, of course, absurd. In a democracy, the government and the public should be regarded as one in the same, and this is especially true for policymaking by administrative agencies. The public servants who staff these agencies are no different from the people they serve. What’s more, the regulations that are in dispute in Chevron cases are the result of a process that involves extensive public input and participation. As such, they are manifest expressions of democracy, and, not incidentally, they often reflect the dispersed wisdom of the public more effectively than do the laws that authorize them.

What this framing also misses is that a large segment of the public benefits from these regulations and have a vested interest in seeing them effectively implemented and enforced. In other words, a better framing of these cases is that they pit one segment of the public against another, which is inevitable in policymaking of any kind.

While the fishers in Loper Bright and Relentless may feel aggrieved by the regulation in those particular cases, they no doubt support the countless other regulations — such as those that keep banks from cheating them out their hard-earned money or those meant to ensure that the food on store shelves is safe to feed their kids — from which they benefit. Would these fishers similarly view banking or food safety regulations as abstract contests between affected companies and the government, in which the public has no interest?

Third, conservatives have sought to use the attack on Chevron deference to promote their distinctly oligarchic vision of constitutional interpretation. According to this vision, the resolution of constitutional questions is too important for the dirty, unwashed masses and should instead be reserved to the rarefied heights of society’s legal aristocracy.

To give effect to this vision, conservative political thought has embraced the concept of judicial supremacy, which holds that the Supreme Court ought to retain an unquestioned monopoly on matters of constitutional interpretation. They prefer this arrangement given that the counter-majoritarian force that the Supreme Court has represented throughout U.S. history has, almost without exception, worked to their favor. And that is certainly the case today with the Court’s current lineup.

The value to this cause of attacking Chevron deference is that it would establish an analogous notion of judicial supremacy applicable to questions of statutory interpretation. And by establishing this judicial supremacy in the context of “low” law (i.e., statutes), the effect is to buttress conservatives’ arguments in favor of judicial supremacy in the context of “high” law (i.e., the Constitution).

Martinez made this gambit clear during an exchange with Justice Ketanji Brown Jackson. There he asserted, “I think, by definition, if we’re talking about interpreting a statute, then you’re talking about a legal question in the same way that if you’re talking about interpreting the Constitution, then you have a constitutional question. No one would say that you would apply deference there.” Justice Clarence Thomas used a question to Solicitor General Elizabeth Prelogar to also press this point. “Could Congress also require deference on the part of the court with respect to constitutional issues?” he probed.

In each of these ways, conservatives have found in the fight over the Chevron deference doctrine a powerful vehicle for advancing their distinctive vision of American political thought. In a third post tomorrow, I will explore how progressive advocates can similarly use this and other battles over the future of the administrative to advance their own vision of a more socially just America.

Responsive Government Courts Defending Safeguards

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