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10/25/2016

The Mistakes of Chevron and a Separation of Powers Fallacy
Mike Rappaport

In my previous post, I talked about how delegation came to dominate our government.  I focused on two types of delegation – delegation of policymaking discretion and delegation of legal interpretation, such as Chevron deference.

I suggested that Chevron was a disaster, because it greatly added to the delegations that had already occurred though congressional statutes.  The courts could have simply enforced those congressional delegations without adding to them with Chevron.  But instead they invented Chevron – which had not been enacted by Congress – and greatly expanded the delegations.

Chevron was also a disaster in another way.  One might believe that Republicans are generally more in favor of limited government than Democrats these days, especially as to government regulation.  This is not an uncontroversial judgment, but I believe it is largely correct.  And if that is so, then the Republican judges of the 1980s undermined their cause when they pushed Chevron.  Chevron allowed administrative agencies significantly more authority to enact regulations. 

Prior to Chevron, the courts basically employed one of two tests for agency deference.  Some of the time they granted deference as to mixed questions of law and fact, but denied deference as to pure questions of law.  At other times, they employed a multi-factored balancing test as to whether the agency should get deference, which was exceedingly unpredictable.  Chevron represented a big transfer of authority to agencies as compared to either of these tests.

So why did the Republican judges of the 1980s invent Chevron?  In my view, there were two main reasons.  First, there was the concern that the multi-factored balancing test was not clear and allowed judicial manipulation.  True enough, although the modern evolution of Chevron has allowed such manipulation as well.  But the Republican judges could have simply, with more precedential support, followed the first test granting deference as to mixed questions, but not as to pure questions.  That would have yielded a test with pretty clear results.

This leads to the second reason – the Republican judges believed that liberal judicial activism was a greater danger than abuse by administrative agencies (agencies which tended to be controlled by Republicans during this period).  The problem with the second reason is that it commits a serious fallacy in the separation of powers: the fallacy of assuming that the present arrangement (of which political party controls the different branches) will continue into the future.  These arrangements can last for a considerable period, but over time they change.

The arrangement that prompted Chevron soon changed.  The Democrats came to control the agencies and the Republicans assumed control of the judiciary.  Since the different branches can be controlled by either party, the best way to determine which powers makes sense for a branch to hold is ask the question from a long run perspective without considering which party happens to control that branch at the moment.

Under this way of deciding the matter, there is a strong argument against Chevron deference.  Chevron might be viewed as the delegation to the agency of either legislative power or judicial power.  Either way, it is problematic. The basic issue is that an agency that can exercise both executive and judicial power or both executive and legislative power is problematic.  By departing from the separation of powers (especially without a legislative warrant for doing so), Chevron gives the executive tremendous power to engage in largely unchecked actions.

It is true that the Republicans were concerned about a real issue as well – liberal judicial activism.  But it would have been better to address that directly – by changing the statute or gradually appointing new judges.  Over time, the judges would have changed, as they did.  Under Chevron, however, the put in place a rule of deference that would allow the abuse of executive power for a long period.