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Instead of having you read the original case for CHEVRON U.S. A. v. NATURAL RESOURCE DEFENSE COUNCIL(NRDC), (1984), I am providing an analysis of how the two most recent Trump appointees to the Supreme Court may view cases involving what is known as the Chevron deference. The core idea behind Chevron deference is that when a statute gives an agency broad power and provides vague guidelines, then the courts should defer to the agency's expertise in deciding how to implement the law.

The Chevron case itself involved the EPA developing a new policy that allowed emissions from "stationary sources" of air pollution, such as coal-fired power plants, to be regulated at a facility or regional level instead of smokestack by smokestack. Essentially levels of emissions could be set for total emissions within a "bubble" of an area, which enabled polluters to have more flexibility in meeting mandatory reduction goals.

Chevron is still good law. As the authors state, it will be interesting if Gorsuch and Kavanaugh see things differently now that they will be handling cases where deference is far more important and central to policy design.

One other notable point, some folks might question what Kavanaugh will do since he has in more recent years demonstrated great commitment to presidential power, and many suspect he would be particularly deferential to President Trump. But these lifetime appointees sometimes drift from their projected impact ….

MH (April 3, 2020)

This first article is from the very conservative Hoover Institution on the Stanford campus. https://www.hoover.org/research/kavanaugh-and-chevron-doctrine

Kavanaugh And The “Chevron Doctrine”

by Michael McConnell

Monday, July 30, 2018

Opposition to Judge Brett Kavanaugh’s appointment to the Supreme Court has almost nothing to do with the nominee himself, who is regarded by almost all serious observers as exceptionally accomplished, experienced, and judicious. He is opposed because his nominator is Donald Trump, and he is opposed because some Democrats feel cheated that President Obama’s 2016 nominee, Judge Merrick Garland, was never given a hearing or a vote. As a practical political matter, that is all that needs be said about the Kavanaugh appointment. Nonetheless, serious issues will be discussed, and one of the most serious and most discussed will be something known to lawyers as the “Chevron doctrine.”

What is the Chevron doctrine? It is the idea that in litigation over federal agency action, the courts will defer to the agency’s own construction of its operating statute, unless that construction is outside the range of reasonableness, usually because the meaning of the statute is clear. The effect is to give the executive branch considerable leeway in determining the scope of its own power. Although first announced in 1984, Chevron deference has become a central pillar of the modern administrative state. It is a systemic thumb-on-the-scales in favor of the government’s view of the meaning of the statute, even if that view changes with political winds and even if it contradicts earlier judicial interpretation.

For just one recent example, the federal Board of Immigration Appeals ordered the deportation of a lawful permanent resident under a statute that calls for removal of persons convicted of “child abuse.” The agency interpreted “child abuse” to include driving under the influence with a child in the car not wearing a seat belt. Just a few days ago, a federal appellate court upheld this order under Chevron – even though “child abuse” is a term that, to most people, connotes a far more hateful and intentional crime. (Martinez-Cedillo v. Sessions (2018)). Obviously, this kind of interpretation can easily shift from administration to administration, effectively converting written law passed by Congress into variable policy molded by executive agencies. Other examples include educational policy, environmental law, transgender issues, patents, election contributions, and health care.

The Chevron doctrine is particularly important when the question is the scope of the agency’s own authority. In the modern administrative state, Congress delegates vast swathes of policy-making power to the regulatory agencies, and the courts no longer even attempt to ensure that the key policy choices are made by the legislative branch. The only practical limitation on excessive delegation is to construe delegations of power strictly, to ensure that the agencies exercise only the quantum of power Congress explicitly delegated to them. Chevron goes the opposite way: it green-lights agency assertions of power, even when it is fairly obvious from the context that Congress had no such intention, so long as the words of the statute can be reasonably stretched to accommodate them.

The late Justice Antonin Scalia was an enthusiast for the Chevron doctrine, at least in its early years, but Judge (now Justice) Neil Gorsuch and Judge (now nominee) Brett Kavanaugh have been powerful critics. They argue that Chevron deference is an abdication of the court’s Article III duty to independently interpret the law, and that it aggrandizes the power of the executive branch at the expense of both the legislative and the judicial. If Kavanaugh is confirmed, it seems likely that one of the most significant changes will be the curtailment if not outright abandonment of Chevron deference.

What has changed in the 35 years since the Court handed down its Chevron decision? Quite a lot. In the 1970s and early 1980s – just before Scalia joined the Court – the Court of Appeals for the District of Columbia Circuit (“the D.C. Circuit”) had assumed effective control over executive branch agencies. (The D.C. Circuit is the court where almost all challenges to federal regulatory actions are litigated.)  This it accomplished in two ways. First, it asserted the power to impose specific new procedural hoops for agency action, well beyond the relatively simple requirement of public notice and comment imposed by the Administrative Procedure Act. Second, it controlled the substance of agency action by aggressive interpretations of the statutes under which the agencies operated. In particular, the D.C. Circuit employed purposive interpretation, as opposed to strictly textual interpretation, holding that agency action was unlawful if the court believed it was not properly serving the purposes of the underlying legislation. This mode of interpretation easily slides into second-guessing the policy choices of the agency.

I was a regulatory lawyer for the executive branch in the early 1980s, and well remember how frustrating it was for well-considered agency policies to be struck down by the D.C. Circuit for no apparent reason other than the judges’ own regulatory policy preferences, which they conveniently, and maybe even un-self-consciously, read into the statutes.

The procedural dimension of this accretion of power by the D.C. Circuit was solved by a 1978 decision, Vermont Yankee Nuclear Power Corp. v. EPA, which held that the courts have no power to impose new agency procedural requirements beyond those dictated by statute (or the Constitution). Significantly, then-Professor Nino Scalia wrote his more important scholarly article on the implications of the Vermont Yankee decision.

Five years later, the Supreme Court tackled the substance of statutory interpretation by regulatory agencies. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council (1984), the Court held that courts have no power to choose particular readings of ambiguous statutes, but must allow the relevant agencies to adopt any reasonable interpretive choice. Although Chevron appeared routine when it came out, it has become the most important doctrine in administrative law. It is not necessarily either “conservative” or “liberal” in its valence, since agencies can swing either way, depending on the administration. (Chevron itself upheld a deregulatory decision by the Reagan EPA.) But the Chevron doctrine has greatly empowered administrative agencies to recast the law in accord with current policy preferences, without having to go to Congress for legislative change.

The reasoning of the Chevron decision was not based on statute, and not genuinely on precedent. The relevant language of the Administrative Procedure Act, which the Supreme Court did not even bother to quote, seems quite opposite to the decision. The Act provides that “a reviewing court shall decide all relevant questions of law” and shall “interpret constitutional and statutory provisions.” In other words, Congress invested the courts, not the regulatory agencies, with the power to interpret the law.

The decision rested instead on two institutional considerations, typical of the “legal process” school of interpretation then dominant in the legal academy. First, the Court emphasized agency expertise. To the extent that statutory interpretation is shaped by how best to effectuate statutory purposes, the Court reasoned that expert agencies are better than generalist courts in making these decisions. “Judge are not experts in the field,” the opinion pointed out. Second, the Court emphasized democratic accountability. Agencies are headed by appointees of the President, and thus are accountable to the people, through the President, for their decisions – unlike judges, who are life-tenured and constitutionally independent of popular will. As the Court expressed it: “Judges . . . are not part of either political branch of the Government. . . . While agencies are not directly accountable to the people, the Chief Executive is.” The Chevron doctrine thus was justified on both technocratic and democratic grounds. 

Both of those grounds now seem shaky. The idea that most decisions by regulatory agencies are based on non-political expert judgment now appears naive. The most important regulatory choices are political or ideological in the most fundamental sense, as prioritizing one or another aspect of the public good, or one or another theory of economics or social justice. When the agency adopts one reading of its statute under the Bush Administration and another reading under Obama, it is hard to attribute the change to dispassionate, neutral expertise.

And while it is true that executive agencies have more of a democratic pedigree than the D.C. Circuit, the Chevron doctrine is now seen as undermining democratic accountability by enabling unelected administrators to side-step Congress. Prior to Chevron, agency heads tended to hew reasonably closely to their organic statutes, knowing that the courts would invalidate action that lacked congressional authorization. If an administration wished to embark on a new regulatory initiative, it would go to Congress for new legislation. Once agency lawyers had absorbed the idea of Chevron, however, they realized that agencies could take statutes in new and unexpected directions without serious risk of judicial invalidation. Whole new regulatory programs – such as the Obama Administration’s Clean Power Program, net neutrality, college sexual assault policies, and the like – could be created and implemented without bothering to seek legislative approval. Members of Congress could sputter, but there wasn’t really anything they could do about it.

Neil Gorsuch and Brett Kavanaugh have been among the first lower court judges to question the continued desirability of Chevron deference. This almost certainly will be a leading issue at the Kavanaugh hearings, and it almost certainly will be a major issue for the Supreme Court in the coming decade. It is ironic, in a way, that Donald Trump is the president who is making nominations likely to cut back on Chevron deference and related doctrines. Two things he and his predecessor have in common is a love for the exercise of unilateral presidential power and a disdain for working with Congress. Why negotiate with the other side (or even your own obstreperous “allies”), or suffer the delays and setbacks of the legislative process, when you can toss off an executive order doing exactly what you want? In the short term at least, an attack on Chevron is not in the interest of the Obama-Trump vision of presidential power.

Unlike more focused questions of constitutional law like guns and abortion, the Chevron issue is not plainly a “conservative” or a “liberal” cause. The doctrine cuts both ways; it can be employed by administrations of any stripe. But it raises the deep question of constitutional governance: whether fundamental political questions will be debated and resolved by representatives of the people, or by agencies whose loyalties almost always are to ideological or economic interests. There can be few more important issues for a nation that calls itself a republic.

Eric Citron Contributor

SCOTUSblog, <http://www.scotusblog.com/2017/03/roots-limits-gorsuchs-views-chevron-deference/>

Posted Fri, March 17th, 2017 11:26 am

The roots and limits of Gorsuch’s views on Chevron deference

Not too long before he was nominated to fill Justice Antonin Scalia’s seat on the Supreme Court, Judge Neil Gorsuch published two opinions – in the same case – staking out some genuinely heterodox positions on administrative law. In the now-relatively well-known case of Gutierrez-Brizuela v. Lynch , Gorsuch wrote both the majority decision for the U.S. Court of Appeals for the 10th Circuit and his own concurrence, using the latter as an opportunity to argue against what is known in the law as “Chevron deference.”

The court’s holding in the 1984 case Chevron U.S.A. v. Natural Resources Defense Council directs courts to defer to reasonable agency interpretations of ambiguous statutes; it is a foundational case in terms of the existing structure of American government, because it grants policymaking flexibility to the agencies that line Constitution and Independence Avenues, and reduces the relative role of courts (and the congressional statutes they are interpreting) in providing fixed stars for our core federal regulatory regimes. In a way, Chevron deference is responsible for making the views of the current head of the Environmental Protection Agency far more important than the content of the Clean Air Act in terms of setting national anti-pollution policy. Gorsuch’s opinion in Gutierrez-Brizuela points out that this result essentially inverts the conventional view of the separation of powers, under which Congress sets national policy through statutes, the courts interpret those statutes to “say what the law is,” and the executive branch carries the law into execution, rather than revising it from one administration to the next according to its policy whims. So we have the odd situation that Gorsuch is viewed as a revolutionary thinker – as taking up arms against a rule at the heart of modern administrative law – by advocating for an understanding of American government we all (should have) learned in high-school civics.

A defender of Chevron would point out that something like its rule is necessary for the government to solve modern problems. Congress can only ever act in fits and starts, and cannot engage in day-to-day technical judgments about, say, what kind of substances are “air pollutants” and what quantity of them is dangerous to human health. So Congress instead sets out the broad policy aims, and then empowers an administrator or cabinet secretary to carry out those aims through her agency’s expertise. Requiring more of Congress is unrealistic, and letting courts freeze the meaning of ambiguous terms like “pollutant” through judicial interpretation means that Congress’ policy goals will be frustrated when times or scientific knowledge change. The core case for Chevron thus comes from big policy statutes that broadly create or empower federal agencies with technical expertise – statutes like the Clean Air Act and Clean Water Act (EPA); the Federal Communications Act (Federal Communications Commission); the Federal Power Act and Natural Gas Act (Federal Energy Regulatory Commission); the Food, Drug, and Cosmetic Act (Food and Drug Administration); or the Occupational Safety and Health Act (Occupational Safety and Health Administration). What is particularly notable about Gorsuch’s famous forays into administrative-law jurisprudence and Chevron deference is how distant they are from these fundamental applications of the doctrine.

In fact, Gorsuch’s two best-known decisions on administrative law – Gutierrez-Brizuela and De Niz Robles v. Lynch – both involve one of the weakest possible contexts in which to defend Chevron doctrine. The administrative agency at issue in both is the Board of Immigration Appeals, the primary function of which is just to decide the host of quasi-judicial immigration cases that must be adjudicated throughout the nation every year. In both cases, the complaint was that the BIA had changed the legal rules on the immigrants at issue and then applied those rule changes retroactively, implicating core fairness concerns, but no real issue of technical judgment or agency expertise.

Remarkably, Gorsuch’s next-best-known administrative law decision shares this feature. In United States v. Nichols , the issue was (again) the power of a non-technical administrator (the attorney general) to create retroactive effects on individuals – although Nichols, even more dramatically than the cases above, involved the agency interpreting a criminal statute. Gorsuch’s opinion would have denied the agency this power under the statute, or else recognized that Congress’ delegating this authority to the executive branch would violate the (now rarely invoked) non-delegation doctrine. Again, Gorsuch is fundamentally sticking up for the classic conception of separation of powers, and the priority position of Congress and the courts in making and interpreting the laws that determine the rights of individuals. But, again, the agency action at issue here is quite far removed from the core purposes of Chevron, in a way that highlights what is bothersome about the doctrine, and masks what it gets right.

All of this is to say that Gorsuch’s atypical take on administrative law may be rooted in his atypical perspective on the subject as a judge on the 10th Circuit, rather than on the U.S. Court of Appeals for the District of Columbia Circuit. The big agency rulemakings on technical questions that sit much closer to the core of Chevron doctrine tend to come up through the D.C. Circuit, and would accordingly jump to mind for justices who got their start there or whose government background involved these kinds of administrative-law issues. (Out of the previous nine justices, that is, remarkably, Scalia, Chief Justice John Roberts, and Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.) The D.C. Circuit does not have any immigration cases, however, and so Gorsuch’s perspective on applications for Chevron doctrine in that context will be relatively new on the court. Of course, Gorsuch’s opinions recognize that his critique of Chevron must extend to cases in which the doctrine makes much more sense than in the narrow area in which he is writing. But because judges are people, Gorsuch’s views on these questions are quite likely to be influenced by his exposure to cases in which Chevron doctrine has far more uncomfortable effects in terms of allocating the responsibility for “saying what the law is” between agencies and courts.

All in all, there is no question that a deep dive into Gorsuch’s writings in this area marks him as a unique skeptic of certain core doctrines of administrative law and the deference they provide to the agencies – particularly on questions of how to read their operative statutes. It is impossible in this regard to confuse Gorsuch with Breyer or Kagan, say, in terms of the deference they are likely to show towards administrative decision making in future cases. What is far less clear is whether and how far Gorsuch’s outspoken skepticism extends to the far-more-central cases of agency rulemaking in which Chevron developed and in which it continues to play a core role in making federal regulation effective. That much remains to be seen.

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