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The Judicial Consequences of Chevron

Did the Chevron decision have immediate consequences? Why is Chevron still controversial today, almost 40 years later? Professor Gary Lawson explains that the Supreme Court did not think they were issuing a groundbreaking precedent but lower courts quickly adapted the Chevron rules of deference to almost all cases involving administrative agencies. Courts now routinely defer to the agencies rather than carefully examining a statute and questioning the agency’s interpretation of it. https://youtube.com/watch?v=Ju9866_mt3g


Now in 1984 when this case came up, we know as certainly as we can know anything in law that the Supreme Court thought it was just applying this settled law, and this was one of those unusual but not impossible cases. Where even though the agency wasn't applying the law to a particular set of facts, was just abstractly interpreting terms in a statute; this is one where you give a lot of weight to the agency because after all, it's a complex technical question. It's why you have agencies to deal with complex technical questions. There's nothing in the statute that leaps out and says, "This can't possibly be what Congress had in mind, so let it go." They did not think this was a big deal. Did not think this was a big deal. Lower federal courts thought it was a big deal. Took about two years, but by the time 1986 came along it was almost the uniform practice in the lower federal courts any time an agency interpreted a statute that it administered, not going to ask whether they got it right. We're going to ask, "Is there a clear meaning? If there isn't a clear meaning, we're going to go to the second step and say is the agency reasonable." So for the last 30 years, that's been the way in federal administrative law that agency interpretations of statutes get reviewed. Remains controversial today for exactly the same reasons that it was controversial 30 years ago. It puts a thumb on the scale of the administrative agency every time one of these cases comes into court on a question about the meaning of Congressional statutes. And one can ask the same question today that people would've asked 35 years ago: what exactly is it that federal judges get paid to do? If they don't get paid to figure out the meaning of statutes, what exactly is their job? And at the time that the Chevron decision came down, I said it took about two years for the lower courts to settle on this as the right understanding of the decision. That was something the lower courts did not agree on. Not all of the judges on the lower courts thought a) that this was the right interpretation of the opinion; b) that it was a sensible way for the federal courts to go about their business. And it was a very strange bedfellows coalition that did not break down along any of the traditional left, right, conservative, liberal spectrums that one might expect. The champions of this view were on both sides. The strongest opponents of treating agency interpretations of law this way were on both sides. So the controversy was there from the beginning. The practice over the last 30 years has settled in. It's the way things are done. The controversy has not gone away. Justice Thomas thinks that this whole approach is not merely unwise but unconstitutional. Justice Gorsuch, no fan of Chevron. Justice Kavanaugh, no fan of Chevron. When he was a lower court judge, Justice Breyer was no fan of Chevron. Whether that has changed over time remains to be seen. So this remains a battle ground at the same time that it's the standard practice in the federal court system about how one goes about reviewing agency interpretations of law. So this definitely something to watch for over the next few years as people with grave doubts about the wisdom of this system increasingly come onto the Supreme Court.

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