Scholar argues that reversing agency deference will limit US government action.
The Republican Party once championed the power of bureaucracy, but now the party is criticizing administrative agencies and seeking to reverse a landmark decision it once applauded, a legal expert claims.
In a new article, Craig Green, a professor at Temple University Beasley School of Law, seeks to explain this observed change. He argues that the Conservatives suddenly changed their stance around 2013, when they began to argue for the reversal of a long-standing legal doctrine calling on the courts to defer to agency bureaucrats. According to Green, the conservatives’ new argument threatens to make agencies, the US Congress and the president less democratically accountable and less able to respond to changing needs.
Green explains that the Conservatives’ goal is Chevron deference – a doctrine established by the United States Supreme Court in the 1984 case Chevron c. Natural Resources Defense Council. The doctrine directs courts to defer to an agency’s interpretation of ambiguous legislation, so long as the interpretation is reasonable.
Green identifies a complete reversal of the conservative stance on Chevron deference today to 50 years ago.
Green observes that in the 1980s President Ronald Reagan wanted to loosen environmental restrictions but could not achieve his goals through Congress, so he decided to deregulate within the executive branch using his appointed bureaucrats. As a result, President Reagan adopted a litigation policy encouraging judicial deference to agency decisions, Green notes.
These efforts, according to Green, resulted in the historic Chevron decision. The decision forced the courts to yield to reasonable agency interpretations of the statutes, which gave presidents broad discretion to fill statutory gaps and develop policy outside of Congress.
Green argues that Republicans viewed the Chevron decision as a success for the Reagan administration, and conservatives chastised bureaucracy critics after the decision. According to Green, some conservative voices have even suggested that deference to agencies is constitutionally required.
Today, by contrast, Green argues that mainstream conservatism opposes Chevron deference, with the Republican Party’s most recent platforms condemning regulatory agencies and calling for legal action to stop them.
Green argues that this change against Chevron the deference is striking because the conservatives failed to acknowledge their previous support for the doctrine and justified both positions using the same philosophy: constitutional originalism, a legal view that focuses on the intent of the framers of the American Constitution. But for Green, the conservatives’ new argument is not about editors’ opinions. Instead, he argues that their position stems from partisan politics under the convenient guise of timeless legal philosophy.
Examining publications by conservative think tanks, legislative proposals, court rulings, and Republican presidential platforms from the 1980s to the present, Green argues that conservatives have almost universally accepted Chevron as constitutional until the re-election of President Barack Obama in 2012. At that time, for the first time, conservatives criticized Chevron deference as unconstitutional and began to advocate constitutional litigation as a way to end it, Green argues.
Green finds some developments in the change curious. For example, he observes that Supreme Court Justice Anthony Kennedy had ample opportunity to raise constitutional questions about deference to Chevron during his 43 years on the federal bench before first sentencing her. in a concurring opinion in Pereira vs. Sessions in 2018.
Green also points out that Judge Clarence Thomas, despite applying deference as recently as 2013 by joining an opinion of Judge Antonin Scalia, began to argue that Chevron the deference was unconstitutional in a series of rulings in 2015.
Some scholars have argued that views on deference change in tandem with party politics. The party in the White House will favor deference to its own administration, while the opposing party will attack it.
But Green pushes back, saying the historical record doesn’t support that narrative. He finds that mainstream conservatives have supported agency deference through several Democratic administrations, and they have subsequently opposed deference despite the election of President Donald J. Trump.
So why this sudden change in 2013? And why have the Conservatives maintained their opposition to Chevron even under the Trump administration?
Green argues that a strongly conservative federal court system could give Republicans confidence that closer, less deferential scrutiny of agency decisions will lead to favorable outcomes.
Republican presidents have named 13 of the 17 most recent Supreme Court appointees and more than half of sitting federal appellate judges. The Trump administration has also ensured that its judicial appointees have anti-agency views, according to Green.
On the other hand, when the Supreme Court decided Chevron, nearly two-thirds of the appeals judges were Democratic appointees.
Green argues that unlike Justice Scalia’s generation, which hoped to protect presidential policy-making from liberal justices, contemporary conservatives recognized that they could wield political power in the judicial system by using this advantage of the court of law. appeal and invoking flexible constitutional principles.
Green also suggests that the new originalist opposition to Chevron could be tied to a partisan focus on “deconstructing the administrative state,” as former White House chief strategist Steve Bannon would have described it. Green argues that President Trump has implemented a deregulatory agenda using the regulators themselves.
Green notes that the Trump administration has used hostile language toward the agencies and undermined them with funding cuts and furloughs. Green argues that the administration appointed agency heads hostile to their departments and worked to undermine trust in independent experts.
Green also warns that “not all precedents are created equal” and that readers should take seriously the Supreme Court’s potential to overturn. Chevron apart from political changes within the executive. He submits that, if the Court annuls Chevron, it could invalidate hundreds of previous decisions applying deference.
Green also argues that undermining deference by the courts could divert power from presidents, who would no longer be able to execute policy through agencies. As a result, the “dead hand” of previous administrations would limit presidents and dynamic policymaking would be more difficult. Green also argues that overriding the deference would prevent Congress from creating agencies to handle new, unforeseen issues.
Green suggests that overturning the decision Chevron could ultimately result in more conservative legislation. He argues that conservative judges could selectively review agency decisions and grant deference to agency interpretations that align with conservative policy goals while reviewing interpretations that conflict with conservative agendas. .
According to Green, partisan politics should not dictate the future of Chevron deference, but they should not be ignored to understand the history and constitutionality of the doctrine. Green argues that both liberals and conservatives need to recognize the deeper issues at play in the debate over Chevronthe future. Only by acknowledging all the consequences of a cancellation Chevron can the Court avoid creating a disaster, he concludes.