A Power Grab of Sorts, Buried in a Supreme Court Decision

(Bloomberg Opinion) -- As the U.S. Supreme Court’s swing justice, Anthony Kennedy is used to making big headlines in June. On Thursday, he did something just as important as issuing a major decision — but considerably harder to capture in a few words.

In a brief, solo concurrence in Pereira v. Sessions, Kennedy called for reconsidering and maybe overruling one of the cornerstones of modern administrative law, known as “Chevron deference.” If the Chevron precedent is overturned, judges would have more direct power to overrule policy decisions made by agencies like the Environmental Protection Agency, the Federal Communications Commission and the Securities and Exchange Commission.

Depending on how you count, Kennedy is the fifth sitting justice to call Chevron into doubt. His opinion is an opportunity to take a hard look at whether the end of the doctrine would be a bad thing or a good one.

The Chevron doctrine, created by the Supreme Court in 1984 in a case involving the Chevron oil company, says that, when Congress has passed a law that is both ambiguous and directed to an administrative agency, the courts will defer to the agency’s interpretation of the law, so long as it is reasonable.

For years, judges on both ends of the political spectrum embraced the doctrine. Liberals like Justice Stephen Breyer, a former academic scholar of administrative law, appreciated the way the doctrine empowered technocratic experts at the agencies and discouraged judges from second-guessing them.

Conservatives like the late Justice Antonin Scalia (who was also an administrative law scholar before becoming a judge) found the doctrine appealing because it reflected the value of judicial restraint, making it harder for courts to reverse agency action from the Ronald Reagan era.

In Scalia’s influential interpretation of Chevron deference, the doctrine made jurisprudential sense because Congress was in effect telling judges to listen to the agencies. Scalia thought judges should listen to Congress and do as little as possible on their own.

But today’s judicial conservatism is not your father’s judicial conservatism. Scalia’s theoretical commitment to judicial restraint (never mind whether he consistently practiced it) has been replaced by conservative judicial activism.

Justice Neil Gorsuch, while still an appellate judge, openly criticized the Chevron doctrine for taking the power to interpret the law away from judges and giving it to agencies. That resonates with a core value held by Kennedy, that the judiciary (in practice: Kennedy) must always have definitive say over the meaning of the law.

Gorsuch clerked for Kennedy, and Kennedy’s new opinion reflects a circular path of influence: Kennedy taught Gorsuch about judicial supremacy; Gorsuch used that to attack Chevron; now Gorsuch is influencing Kennedy to apply his own values to Chevron, too.

Kennedy and Gorsuch make two. Justice Clarence Thomas, the court’s only true, all-in originalist, has his doubts about whether administrative agencies, undreamed-of by the founders, are even constitutional in the first place. You can be sure he doesn’t like a doctrine that empowers the agencies. Chief Justice John Roberts hasn’t called for the doctrine to go, but he has criticized the overuse of Chevron before. That makes four.

Justice Samuel Alito may be a wildcard. On the one hand, he has criticized agency overreach in reliance on supposedly “ambiguous” statutes. In a speech to the conservative Federalist Society in 2016, Alito went so far as to claim (with some plausibility) that “before his death, [Scalia] was also rethinking the whole question of Chevron deference.” That suggests that Alito could join his conservative colleagues.

On the other hand, in last week’s case, Alito wrote a separate dissent of his own saying that Chevron deference should have been applied because the statute in question was ambiguous. In his punchline, he wrote that “unless the court has overruled Chevron in a secret decision that has somehow escaped my attention, it remains good law.”

This may conceivably imply that Alito is not ready to jettison Chevron. It’s noteworthy, too, that while Kennedy’s concurrence cited opinions by Roberts, Thomas and Gorsuch, it didn’t cite any Alito opinion calling Chevron into question.

If Alito is on board with the other conservatives, what then? Liberals are already worrying that the end of Chevron would invite activist conservatives to overturn agency action. That’s a logical fear. If the conservatives want to end Chevron, it’s at least partly because they want to be able to constrain future Democratic-controlled agencies. No matter what happens after Donald Trump’s presidency, we are going to have a more conservative judiciary because of his appointees.

Yet the truth is that liberals can’t really mourn the end of Chevron too hard, because liberals like judicial activism. Most liberals since World War II aren’t really committed to judicial restraint — except when liberals don’t have five votes on the Supreme Court.

Deep in liberals’ hearts, they know that courts exist to interpret the law and must often do so in the light of values. Scalia’s fantasy that judges could be mere objective rubber stamps is one that liberals must recognize as unrealistic in many situations.

Seen from this perspective, the end of Chevron could be bad for the environment, bad for the internet, bad for securities regulation, as conservative judges overturn agency regulation.

But the end of judicial deference to agencies won’t be bad for the rule of law itself. That rule is strengthened when judges — however fallible, however motivated — use reason to say what the law is, and take responsibility for their judgments.

©2018 Bloomberg L.P.

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