Who Deserves Scalia’s Mantle?
The Chevron precedent may hold the key to the future of the conservative legal movement.
In 1989, five years after the Supreme Court’s decision in Chevron v. Natural Resources Defense Council, Justice Antonin Scalia began a notable lecture in support of Chevron by admonishing an audience of law students: “Administrative law is not for sissies–so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture.” Readers of Professor Thomas Merrill’s new book, The Chevron Doctrine, should likewise heed Scalia’s warning that plumbing the depths of administrative law is not a light endeavor. However, it is a crucial one for anyone who seeks to understand our national politics. The debate over Chevron is really a debate about the future of the conservative legal movement and about who can claim the mantle of Justice Scalia.
To have an interest in contemporary American politics is to have an interest in Chevron. One cannot understand how the three branches at the federal level interact with one another without paying heed to the strong deference that courts give to administrative agencies when those agencies interpret and act on ambiguous terms within federal statutes. For example, the ambiguous term from the original Chevron case that the EPA interpreted was what constituted a “source” of air pollution. That strong deference comes as an outgrowth of the second step of Chevron’s two step formula, bequeathed by the opinion’s author, Justice John Paul Stevens. The modest first step asks if the meaning of a statute is clear or not. If the statute is clear, then courts do not allow the agency to perform their own interpretation of it. But all too often courts determine the meaning of a statute is unclear, triggering the second step of Chevron. If a statute is unclear, courts then perform an analysis of whether that agency’s interpretation was “reasonable.” That second step has been the source of controversy because of the assumption that broadly written statutes confer upon agencies power to determine the law’s meaning according to a test of mere “reasonableness.”
Merrill convincingly demonstrates that the Chevron doctrine “may countenance one of the largest transfers of political power in our history, from Congress to the executive.” One member of the Supreme Court, Justice Neil Gorsuch, noted that Chevron “effected a revolution in 1984.” But federal judges, as much as the Supreme Court, had a role in this enormous transfer of power.
The language of Chevron invited “busy lower-court judges” to “simply ratify whatever the agency proposes to do,” Merrill writes. Compared “to the complex matrix of factors that prevailed in the pre-Chevron era,” lower courts embraced the relative simplicity of the formulaic two-step Chevron analysis. Either a statute supports what the agency is doing, the statute is ambiguous enough that the agency can interpret the statute reasonably, or the statute “clearly foreclos[es] the agency position.” Only in uncommon circumstances would a court find that an agency interpretation is unreasonable. For lower court judges whose cardinal fear is being overturned on appeal, the Chevron framework serves them as straightforward and binding precedent of the Supreme Court, while also requiring minimal judicial resources devoted to researching each element of the pre-Chevron multifactor test.
Today, Chevron faces its greatest test of survival before a Supreme Court majority that, Merrill believes, “may undertake to rewrite the Chevron doctrine at some point in the future.” Why is Chevron so endangered? As Merrill notes at several points, Chevron was not a landmark decision, nor did it divide the justices when the Court decided it. Rather, Chevron became one of the Court’s most significant decisions over time. The story about why the precedent is endangered is as much political as it is legal.
Initially, support for Chevron seemed tied to whether your political party inhabited the White House. For example, Republicans initially welcomed Chevron as a decision that would aid deregulation efforts ongoing in the 1980s. Executive agencies under the Reagan and Bush administrations frequently filed lawsuits in the D.C. Circuit, presided over by a bastion of liberal jurists supportive of expansive readings of environmental and labor statutes. Chevron gave these Republican administrations greater confidence that the Supreme Court would defer to their interpretations of ambiguous statutes in overruling D.C. Circuit decisions. However, during the Democratic Clinton and Obama administrations, “conservative commentators and judges…became increasingly skeptical about the Chevron doctrine.” Expansive interpretations of statutes by agencies under these two Democratic administrations, on hot-button issues such as immigration (for example, the Obama administration’s Deferred Action on Childhood Arrivals) as well as labor and environmental laws where congressional gridlock prevented legislating, incurred the newfound ire of Republicans toward Chevron. Furthermore, Merrill does not mention it, but a good deal of Republican opposition to administrative rule also derives from a semi-permanent class of bureaucrats, whose political affiliation is largely Democratic, who staff federal administrative agencies and who are insulated from changes in administration.
When President Trump nominated Neil Gorsuch and Brett Kavanaugh to the Supreme Court, a major reason why they were chosen was that they were two jurists who were particularly critical of Chevron in their opinions as lower court judges. The reshaped Court with Justices Gorsuch and Kavanaugh has yielded opinions in Kisor v. Wilkie, Gundy v. U.S., and West Virginia v. EPA that have shown varying degrees of openness to revise the framework of Chevron. Chevron is also somewhat in danger from legislative attacks such as the Separation of Powers Restoration Act, passed in the House during the Trump years.
Chevron is in danger, therefore, because of a counterargument that has developed in conservative legal circles. This counterargument is skeptical of the reasoning of Chevron and the growth of the administrative state. But is there unity in conservative legal circles on revising Chevron? Merrill opens his work by using the frame of two books with divergent views on Chevron. On the one hand, in Judicial Fortitude, former White House Counsel Peter Wallison casts the growth of “administrative authoritarianism” as the result of vast delegation of power from Congress to agencies. Chevron is Wallison’s great enemy because it prevents courts from providing an independent check on that delegation. Wallison also castigates the second order effects of these delegations, including an economy sapped of dynamism from overregulation and individual liberty in jeopardy from administrative edicts. Wallison represents the mainstream view of most of the present conservative legal movement.
On the other hand, Harvard Law Professor Adrian Vermeule, in Law’s Abnegation, sees the decades-long reaffirmation of Chevron within our governance as an example of Congress and the courts willingly submitting to the practical necessity of administrative rule. Vermeule has gone further in other writings to argue that administrative law possesses an “inner morality.” Vermeule’s approach to Chevron would hew to the status quo or even extend the precedent further to incorporate deference to procedural due process rights as understood by the agency. Vermeule’s embrace of Chevron is the extreme minority position within the conservative legal movement at present, though his position does have the benefit of harmonizing with Chevron as existing precedent.
In the battle to claim legitimacy for a post-Chevron future, no authority carries more weight for those in the conservative legal movement than that early booster of Chevron, Antonin Scalia. Merrill cites Scalia more than any other justice in the book, not only for his expertise in administrative law but also because of his tenure as a judge. Scalia’s terms on the D.C. Circuit as well as the Supreme Court neatly overlapped with the evolution of Chevron. Scalia’s decisive role in distilling the meaning of Chevron through law review articles and opinions, particularly in the first decade after Chevron, cannot be overstated. With lower courts embracing Scalia’s understanding of Chevron due to his “aggressive advocacy” of the doctrine in his 1989 United Food Workers concurrence, Merrill ascribes great significance to Scalia’s contributions in endorsing the Chevron doctrine.
Yet decades later, in Scalia’s opinions in 2015’s Perez v. Mortgage Bankers Association and Michigan v. EPA, he was no longer offering full-throated defenses of Chevron. In Mortgage Bankers, he wrote lines it would be difficult to imagine him writing earlier: “By deferring to interpretive rules, we have allowed agencies to make binding rules unhampered by notice-and-comment procedures. The problem is bad enough, and perhaps insoluble if Chevron is not to be uprooted, with respect to interpretive rules setting forth agency interpretation of statutes.” It is in these cases, during the second term of the Obama administration, where notable shifts among the Republican-appointed jurists began to appear on Chevron. Merrill highlights in particular Justice Clarence Thomas’s “stunning about-face” from joining Scalia in 2013’s City of Arlington upholding broad agency interpretative authority to Thomas’s concurrence in Michigan two years later in which he mused whether Chevron endorses an unconstitutional violation of the separation of powers.
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Unfortunately, Scalia’s death in 2016 robbed us from seeing just how much his views on Chevron would change further if at all. But Merrill is certain that the experience of the Obama years convinced many judges and lawyers in the conservative legal movement to prioritize judicial recognition of the separation of powers and to become hostile to Chevron even if that meant a repudiation of Scalia’s earlier views on it.
In October 2022, Professor Vermeule delivered a notable lecture at Harvard Law School on Scalia’s views on administrative law. Vermeule contrasted what he called the “original Scalia” with the “evolved Scalia.” Vermeule understands “original Scalia” to have had the better understanding of Chevron. However, on November 7, 2022, Justice Gorsuch issued a dissent to a denial of cert petition on an administrative law case in which he drew heavily on Merrill’s book to assert that “experience has exposed grave problems with [original Scalia’s] expansive reconstruction of Chevron.” Gorsuch wants his colleagues to understand that original Scalia was not right from the beginning on Chevron and to be open to revisiting the precedent.
The debate is far from finished, since no other justice joined Gorsuch’s dissent. It is a testament to Merrill’s new book that it is already part of this ongoing and vibrant debate.