Tuesday, October 16, 2018

Deconstructing the Administrative State: Is Chevron Unconstitutional?

Guest Blogger

Craig Green

               Constitutional dynamics that Gillian Metzger has called “anti-administrativism”—or “deconstructing the administrative state” if one prefer Steve Bannon’s terminology—have undercut one of the most established precedents in American law.  For too long, most lawyers haven’t really noticed.  In 2013, Justice Scalia warned that his colleagues wished to kill “Chevron itself,” and in 2015, Justice Thomas wrote the first judicial opinion ever to declare Chevron unconstitutional.  Justice Gorsuch was nominated in part because he condemned Chevron on the Tenth Circuit, and other conservative judges including Justice Kavanaugh have quickly joined the anti-Chevron trend.  This summer, when Justice Kennedy wrote that the Court should reconsider Chevron based on “constitutional separation-of-powers principles,” perhaps it was more shock than surprise, but for most in the legal community it was both of those things.  This article on ssrn is my effort at a response. 

               Much of the project is historical.  In the 1930s and 1940s, political forces that endorsed pro-business deregulation fiercely resisted agencies’ authority to interpret statutes, but Chevron in its own era was a substantial victory for the pro-business deregulatory Reagan Revolution.  As a matter of immediate results, Chevron upheld regulations from Reagan’s EPA Administrator Anne Gorsuch, while reversing a D.C. Circuit opinion by then-Judge Ruth Bader Ginsburg.  As a matter of general doctrine, the Court’s broad deference to statutory interpretation by agencies allowed the Reagan Administration to alter many substantive rules of administrative law, despite the fact that Republicans did not at the time (and do not now) have sufficient congressional power to “repeal or replace” many public law statutes that they disagree with.

               In 1985, a public lecture by Justice Scalia effused that Chevron deference was fully consistent with constitutional law, and that the decision was also a solid improvement on the status quo.  A host of Reagan Republicans felt exactly the same way—including Doug Kmiec, Judge Laurence Silberman, and Assistant Attorney General Richard Willard—while Judge Kenneth Starr proposed more aggressively that Chevron deference might be required under a proper interpretation of constitutional separation of powers.  Modern anti-Chevron critics have not adequately acknowledged or grappled with earlier conservative arguments that they would eventually discard and displace.  This is why Justice Scalia’s opinions about Chevron are often characterized as idiosyncratically and puzzlingly out of touch with a new generation’s description of ostensibly timeless constitutional principles.  Current analyses have not appreciated the full scope of legal conservatives’ about face from the 1980s till now, much less has anyone tried to explain it.

               In examining any legal change, to identify “when” is a vital part of understanding “why.”  My article’s research cites an original collection of presidential platforms, conservative think-tank publications, and judicial opinions to demonstrate that conservative critiques of Chevron did not enter the political mainstream when Democrats won the Presidency in 1992, 1996, or 2008.  Instead, a dramatic legal-political shift occurred after President Obama’s second inauguration in 2013.  And of course, such anti-Chevron critiques have not diminished under the Republican Presidency of Donald Trump; they have only grown ever more powerful.

               The thirty-five-year history of Chevron’s constitutional politics therefore is not a simple narrative about partisan politics, with transparent flips and flops after each change in presidential regimes.  On the contrary, anti-Chevron critiques represent a complex, intergenerational story of institutional choices, as conservative actors and theorists once accepted and later disputed particular visions about which governmental officials truly “say what the law is” in a modern administrative state.  During Justice Scalia’s early career, the judiciary was predominantly filled with Democratic appointees, and such institutional realities affected him and his contemporaries as they created the legal conservative movement.  By contrast, modern conservatives have grown up with a system of federal courts that has shifted generally (though not uniformly) rightward.  The upshot is that today’s conservative judges possess a historically distinctive power to reshape constitutional structure—and correspondingly to dismantle regulatory bureaucracies—in ways that might endure as judicial precedents long after any specific presidential administration has come and gone.

               As a normative matter, the article incorporates older scholarship—including work by Henry Monaghan—to explain Chevron’s compatibility with established ideas about constitutional structure, notwithstanding the emergence of newly sophisticated historical critiques from the legal academy and newly influential doctrinal arguments from the bench.  In academic circles, Chevron’s modern revisionist critics have relied on sources from seventeenth-century England, claiming in various iterations: (1) that judicial deference was a categorically new doctrine in the 1940s, and (2) that modern federal judges should constitutionally invalidate deference to agencies (alongside most of administrative law) because it resembles “extralegal” royal prerogative in the English colonial homeland.

               By contrast, my article offers a new collection of Supreme Court precedents decided before and after 1940, confirming that Chevron was constitutionally similar to earlier forms of deference to agencies, and that prudential limits on judicial deference were almost never rooted in principles of constitutional law.  In the nearby past, dominant forms of legal culture and constitutional reasoning had assumed that judicial deference was “on the wall,” as opposed to “off the wall.”  But this article responds to new and iconoclastic critiques with new and systematic evidence, which marks a broader point about Chevron’s constitutional critics:  quite contrary to their own self-description, modern critiques do not represent a restoration of constitutional purity or greatness from some earlier and better period of American law.  Instead, they rely on profoundly novel interpretations of constitutional law and administrative law that have not been adequately recognized or acknowledged as such.

               As a matter of public policy, efforts to shrink the administrative state through standard mechanisms of democratic politics might be good or bad; almost certainly, such reductions would be both, for different groups in different contexts.  What makes Chevron’s constitutional critics important and dangerous is their eagerness to advocate deregulatory (in that sense pro-business) outcomes through judicial institutions and constitutional arguments.  The normative consequences of that tactical choice are what require immediate and focused attention from the legal community.

               A different argument from anti-administrativist Chevron critiques—reliance on old English history—has been criticized in several other important venues.  My article supplements that scholarship with close attention to American legal experience under the Revolution and the Articles of Confederation, which makes it even more difficult for anti-Chevron critics to alchemize broad historical claims into specific constitutional conclusions.  For example, although one anti-Chevron critic claims that American legal systems from the Declaration to the Constitution “systematically” and constitutionally eliminated all forms of lawmaking other than courtroom adjudication and formalized legislation, those same early and revolutionary Americans implemented their own law through messy and improvisational institutional structures.  Similar developments in early state governance, basic dissimilarities between American and British institutions of constitutional law, and other historical objections should, in combination with one another, impose high standards of evidence and specificity before anti-Chevron critics’ sweeping generalizations about old Anglo-American history can be doctrinally applied to invalidate Chevron in modern federal courts.

               In responding to critiques of Chevron by modern judges, my article separately considers three sources of objection—nondelegation, Marbury, and individual rights—for the first time.  Against their full historical backdrop, such arguments are easy to recognize for what they are: aggressive and new judicial efforts to dismantle basic features of the administrative state, with only modest attention to theoretical underpinnings and practical consequences.  Because Chevron’s strongest judicial critics have thus far acted through concurring and dissenting opinions—in cases where the litigants never asked for such analysis—the full scope of their arguments has not been fully developed.  My article nonetheless suggests that current attacks on the seemingly technical issue of judicial deference could ultimately help destabilize modern governance as it currently exists.

               The article’s doctrinal defense of Chevron as constitutionally valid implicitly questions what the category “constitutional law” is supposed to mean if an iconic case like Chevron can be so suddenly and casually discarded.  To overrule Chevron would be the most radical decision about constitutional structure in eighty years.  It would upset hundreds of judicial decisions, thousands of statutory provisions, and countless agency decisions.  But for what purpose?  And with what institutions of public and private power to follow?  Here again, certain forms of conservativism—that presumptively favor incremental and modest forms of constitutional change—conflict with other kinds of conservativism—that favor dramatic expansion of private property and power against public regulation and governance.

               Outside the context of anti-Chevron constitutionalism, the modern era is filled with attacks on once-accepted institutions, conventions, and establishments.  Highly public attacks have described law enforcement, the diplomatic corps, lawyers, and the national security apparatus as a corrupt “deep state.”  Journalists have been fiercely assaulted as “enemies of the American people,” even as they have documented widespread neglect and dismantling of federal agencies, with potentially lasting consequences for federal credibility and personnel.  The Great Chevron Debate contributes to this broader picture by showing how the translation of politics into constitutional law often can affect both categories, leading conservative political actors who might reject other forms of Trumpism to nevertheless participate in one of Steve Bannon’s signature projects: deconstructing the administrative state.

               As a practical matter, these topics go to the heart of the administrative state; and as a theoretical matter, they go to the center of constitutional law.  Thus, readers who wish to dig more deeply and broadly than my article will be pleased to know about Sophia Lee’s outstanding and timely symposium on the History, Theory, and Practice of Administrative Constitutionalism.  Many voices in administrative and constitutional law are turning their attention to this kind of intellectual work, which seems only more important with each passing day.

Craig Green is James E. Beasley Professor of Law at Temple University Beasley School of Law. You can reach him by e-mail at at

Older Posts
Newer Posts