Philip Hamburger: Chevron’s last days?

IsAdLawUnlawful Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School and the author, most recently, of Is Administrative Law Unlawful? (Editor’s note: Answer: Yes.) It is easily one of the most important books published in 2014 and certainly one of the most important I have ever read.

Professor Hamburger has graciously taken time out from his vacation to comment at our request on the Supreme Court’s decision earlier this week in Michigan v. EPA. Professor Hamburger writes:

Whatever you think of the Supreme Court’s recent decisions, the really seismic constitutional development that is rumbling underneath them is not Obamacare, marriage, or the environment, but a reconsideration of Chevron. What is Chevron? And why does it matter?

Chevron U.S.A. Inc. v. Natural Resources Defense Council was a 1984 Supreme Court case that greatly expanded the power of administrative agencies. For three decades, it has required judges, where a statute is ambiguous, to put aside their own judgment of what the statute means and, instead, defer to any reasonable interpretation by an administrative agency that administers the statute. This has been a cornerstone of administrative power, for it allows agencies to legislate under the guise of interpretation. No wonder that so much administrative power these days comes in the form of “interpretation”! And no wonder that administrative power has expanded far beyond any specific congressional intent!

This week’s writing on the wall — or at least what one can read between the lines — does not bode well for Chevron deference. When the Supreme Court upheld the IRS’s interpretation of Obamacare in King v. Burwell, it did not rely on Chevron. The government asked the Court to apply Chevron deference, but the Court exercised its own judgment about what the statute meant, and this already was interesting, for it suggested that the Court was unwilling to uphold so significant an agency interpretation under Chevron. Four days later, when the Court rejected the EPA’s interpretation of the Clean Air Act in Michigan v. EPA, it relied on Chevron, but only to reject the agency interpretation.

Topping it off was Justice Thomas’s concurrence. Justice Thomas has repeatedly distinguished himself by speaking honestly about the deep constitutional problems that face the Supreme Court, and his concurrence observed that the EPA’s “request for deference raises serious questions about the constitutionality of our broader practice of deferring to agency interpretations of federal statutes.”

Thomas notes that, under Chevron, agencies could be viewed as lawmakers or as authoritative interpreters, and “[e]ither way, Chevron deference raises serious separation-of-powers questions.” The Constitution vests its legislative powers in Congress and the judicial power in the courts, consisting of judges. And this has consequences. On the one hand, if Chevron allows authoritative agency interpretation, it takes from the judges their constitutional duty to exercise independent judgment, including their duty to interpret — what Chief Justice John Marshall in Marbury v. Madison called the “duty . . . to say what the law is.” On the other hand, if Chevron allows agency lawmaking, it collides with Congress’s legislative power, for it gives the force of law to “agency pronouncements on matters of private conduct as to which Congress did not actually have an intent.”

Thomas concludes that “we seem to be straying further and further from the Constitution without so much as pausing to ask why. We should stop to consider that document before blithely giving the force of law to any other agency ‘interpretations’ of federal statutes.”

Indeed, what really is at stake here is not simply the Constitution, but the very legitimacy of the federal judiciary. Whatever their failings in departing from the Constitution, federal judges generally enjoy the reputation of being unbiased. But what if, in fact, they are systematically biased in favor of the government? Of course, this is not to say they are personally biased, but Chevron forces them to engage in institutional bias. This is the allegation of my essay “Chevron Bias.” It points out that in their Chevron deference, the judges have abandoned their duty of independent judgment. It adds that where the government is a party to a case (as in Michigan v. EPA), Chevron requires the judges to favor one of the parties — the most powerful of parties. This is systematic prejudice, and it delegitimizes the entire judiciary.

This is why Chevron is in play. Many judges, on the Supreme Court and below, are becoming deeply concerned about Chevron, lest it require them to give up their independent judgment and even become systematically biased.

For more about these problems, read my “Chevron Bias” essay by clicking here (and then hitting the download button). Administrative power is utterly corrupting, and because Chevron has institutionally corrupted the judiciary, at least some of the justices are beginning to have buyer’s remorse.