Overruling the Chevron Doctrine Would Be Oedipal: Noah Feldman

Over the last two years, the US Supreme Court achieved two long-sought conservative goals in overturning high-profile legal precedents on abortion rights and affirmative action. Now the court has turned to the third element of its conservative revolution: judicial deference to administrative agencies, known to lawyers as the Chevron doctrine.

Yesterday, the court heard oral arguments about whether to overturn the 1984 case in which it held that, if a statute is ambiguous, the administrative agency tasked with applying the statute gets to say what its legal meaning is — provided the agency’s interpretation is reasonable. The issue is hugely important for the vast panoply of regulatory law, from environmental rules to food and drug safety.

What the Chevron case has in common with Roe, the abortion case, and Bakke, the affirmative-action case, is that it dates back to the days of the Burger court and has been under attack by conservatives, who say it gives too much power to regulatory agencies. Along with Roe and Bakke, it’s been on the conservative hit list for years.

But notably, Chevron was decided unanimously. Justice Antonin Scalia, the intellectual father of the modern conservative legal movement, not only embraced Chevron but provided the case with a conservative intellectual foundation in a famous lecture he gave in 1989.

In other words, the conservative assault on Chevron doesn’t date back to the time of decision itself, and isn’t ultimately based on conservative legal thought. Rather, it’s a function of the libertarian skepticism toward all regulation.

From the oral argument, it was clear that all three liberal justices want to preserve Chevron and that three of the conservatives — Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh — want to overrule it.

The liberals emphasized the key point in defense of Chevron: Agencies, not courts, are policy experts. Their job is to protect the air we breathe, the food we eat, and the medicines we take, all of which require expert knowledge of the kind possessed by regulators — and lacked by judges. Deferring to the agencies’ reasonable statutory interpretation allows the system to work properly. Handing interpretation of complex, ambiguous regulatory statutes to judges is a great way to mess things up and make us less safe.

The conservatives, for their part, deplored the reality that, when a new presidential administration comes into office, it has the power to issue new interpretations of ambiguous statutes, thus flipping the regulatory environment on its head.

The outcome in the case will come down to Chief Justice John Roberts, the closest thing to a swing voter on the current court, and to Justice Amy Coney Barrett.

Roberts hates to overrule precedent directly because he believes it undermines the court’s legitimacy. His strong preference is to chip away at doctrines he doesn’t like. In the context of agency action, Roberts has developed the so-called “major questions doctrine,” which allows the courts to reverse agency action when they decide that an action is major and that Congress hasn’t expressly authorized it. The major questions doctrine means that Chevron doesn’t really have to be overruled, because the courts now have the power to refuse deference to agencies notwithstanding the Chevron rule. Roberts accordingly asked the lawyers seeking to overturn Chevron whether Chevron really mattered very much anyway — code for asking why the court should bother to countermand it at all.

Barrett’s concerns derive from her allegiance to Scalia’s theory of legal conservatism, which highlighted judicial restraint. Scalia reasoned that Chevron appropriately limited judicial power because it blocked judges from applying their own policy preferences. The other conservatives have either ignored or tried to explain away this logic — mostly because they no longer believe in judicial restraint.

Barrett, who clerked for Scalia, expressed multiple times the concern that overturning Chevron, a pillar of administrative law, would flood the courts with litigants asking to reverse the many hundreds of decisions over the years that relied on the Chevron doctrine.

To what extent are today’s conservative legal thinkers prepared to reject the teachings of Scalia, an icon in their movement? For the late justice, judicial restraint was the master principle of modern conservative legal thought. He adopted constitutional originalism and statutory textualism in the service of constraining judges from imposing their will.

Overturning Chevron would be an Oedipal act, killing the father of modern legal conservatism. It would show the conservatives openly moving to empower judges to impose their version of the law, not the version adopted by expert agencies after empirical analysis and careful policy consideration.

Unless Roberts and Barrett save the rest of the conservatives the embarrassment, the conservative majority is on the brink of a decision that will go down in history as a judicial power grab.

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To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Sarah Green Carmichael at sgreencarmic@bloomberg.net

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