On January 17, the Supreme Court heard oral arguments in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce—two cases that ask whether the Court should overrule the landmark Chevron v. Natural Resources Defense Council case. In this episode, guests Christopher Walker of Michigan Law School and Timothy Sandefur of the Goldwater Institue join to recap the arguments in both cases and to explore the future of Chevron and the administrative state. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, and Samson Mostashari. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Christopher Walker is a professor of law at Michigan Law School. He previously worked on the civil appellate staff at the U.S. Department of Justice, where he represented federal agencies in a variety of regulatory contexts. He serves as a senior fellow at the Administrative Conference of the United States, is a regular blogger at the Yale Journal on Regulation and the section editor for Jotwell’s Administrative Law Section. He is the author of numerous works on administrative law, including the forthcoming Constraining Bureaucracy Beyond Judicial Review: Rethinking Administrative Law in a System Without Courts (2024).
Timothy Sandefur is vice president for legal affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He is also an adjunct scholar with the Cato Institute. He is the author of eight books, including most recently Freedom’s Furies: How Isabel Paterson, Rose Wilder Lane, and Ayn Rand Found Liberty in an Age of Darkness (2022).
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Loper Bright Enterprises v. Raimondo (oral argument via C-SPAN; transcript)
- Relentless v. Department of Commerce (oral argument via C-SPAN; transcript)
- Christopher Walker, Amicus Brief in Support of Neither Party, Loper Bright Enterprises v. Raimondo
- Timothy Sandefur, Amicus Brief of Goldwater Institute in Support of Petitioners, Loper Bright Enterprises v. Raimondo
- Chevron U.S.A. Inc., v. Natural Resources Defense Council (1984)
Excerpt from Interview: Tim Sandefur on the evolution of conservative and libertarian legal thought, noting a shift away from deference towards an active judiciary.
Tim Sandefur: In fact there was kind of bookends with the debate, I think it was three years ago now, at the National Federal Society Convention. I wasn't there, but I think it was Randy Barnett versus, I think it was Judge J. Harvie Wilkinson, I think, over deference. And what was remarkable about that was that, after that debate, when the audience was asked to applaud for which side they supported, they were more on the anti-deference side. I think it shows an evolution of thought within, broadly termed, the conservative or libertarian legal world over the past 40 years or so.
Justice Scalia was, you know, he was of this generation, of the Bork generation. Bork's influential godfather was Oliver Wendell Holmes. Very pro-deference, very anti-natural rights, and I think that has largely given way now to the world of Justice Thomas, who's much more sympathetic to the idea of an active judiciary. Active in the sense of enforcing the constitution instead of ignoring it. Of enforcing natural rights as protected by the 14th Amendment, and in taking these constitutional issues series that our, seriously that our framers intended them to take.
So, as far as Scalia himself is concerned, I can't, obviously pretend to speak for him. I only met him two or three times, but it seems to me, from his work, there was always this, sort of, tension in his mind. He was definitely not 100 percent on the Bork side as far as judicial deference is concerned. He took certain individual rights very seriously, you know. Especially things like search and seizure, he wrote some great opinions on that show that he was not willing to just close his eyes to some things.
At the same time, he was also very hostile to what he viewed as judicial policymaking or legislating from the bench, and I think those two things were always intention in his jurisprudence, and that tension is revealed by the change in attitudes over Chevron difference.
Excerpt from Interview: Chris Walker on the history of Chevron and whether judicial deference is consistent with the original understanding of the Constitution.
Chris Walker: I would just say, at the outset the hard question here is Chevron deference consistent with the Administrative Procedure Act, that was enacted in 1946, and I think that's where some of the most interesting scholarship has been done, kind of, a deeper dive.
All of the scholars I am aware of, recognize that some form of deference existed before the Administrative Procedure Act of 1946. And I think most also would agree, it's not our Chevron two-step, but that's, like, a much more crystallized, kind of, maybe a more robust rule-like deference. But when you think about what Congress was trying to do when they enacted the Administrative Procedure Act, which is, like, the quasi constitution of the administrative space that it was trying to confine the existing common law backdrop, the, the norms and rules the courts had created when it comes to deference.
I've argued that Chevron's not consistent with the Administrative Procedure Act. Their argument, someone like Aditya Bamzai or John Duffy, both professors at the University of Virginia, they argue that if you look at those earlier cases, most if not all, I would say most, because there are a couple that don't quite fit say that courts should defer to agency interpretations that are contemporaneous and consistent. In other words, if they were done at the time the statute was enacted, or if they were consistent over time that gets deferred.
So, of course, that's a lot weaker deference than Chevron. Chevron itself was a case where the EPA changed its interpretation from the Carter's Administration EPA's approach. So that's, kinda, the debate you have on the statutory side.
But that, but I do think that's the big debate. I think that's the hard debate along those lines. Now, there are also constitutional arguments that have been raised against Chevron, and, candidly, I just don't think they're very good. Tim might disagree with me, a little bit, maybe a lot, but, when I think of the constitutional arguments, there're, kinda, two different flavors.
The first argument is an Article I argument at least and because it's Article I in the constitution that gives Congress the power to legislate. And the argument goes that, Chevron deference encourages Congress to over delegate to agencies, for some of the reasons that Tim said. They have incentives, they can give a lot of power to agencies, if they don't like what they're doing, they can reach out and pressure them to do something different, through oversight, through committee work, through appropriations. And then they can take the credit for the good stuff the agency does, as Tim mentioned, and blame the agency when something goes wrong.
A decent policy argument that, you know, something we should think about, does Chevron reward Congress for over delegating? I think it's a pretty meritless constitutional argument though. If what we're really worried about is Congress delegating something they can't delegate then we should be talking about the non-delegation doctrine and reinvigorating that.
And instead of what we're worried about as well, like, this might give incentives or that's Congress' prerogative, as long as their delegating is constitutional then that's, that's really just fair game. Congress can decide how much it wants to give away within constitutional limits. So, that's the Article I argument.
The Article III argument is, the Article III is what gives the courts the power to the constitution that says that, the judicial power of the United States shall be vested in the supreme court and lower courts as Congress so designs. And that argument is, kind of, your Marbury versus Madison, the Supreme Court has to say what the law is, and Chevron doesn't allow them to say what the law is. In other words, they can't say, this is the best interpretation of the statute. If there are multiple reasonable interpretations, a court has to defer to an agency.
Another way to think of this, this is Phil Hamburger's approach, he, he's the, runs the center that is the counsel for the Relentless petitioner in this case, and he would say this is a due process violation. So, another way to think of this is, it puts the thumb on the scale for the government when they get into court. And on this one, again, I just don't think it works, in the sense that, Congress can strict lower courts and jurisdiction entirely, and since the founding is the Solicitor General mentioned yesterday, we've had habeas review, we've had mandamus review. All of those require a court to defer to the government in one way or another, or to defer to the party that's not seeking relieve.
And it would a dramatic, dramatic change to our constitutional structure to say that, de novo review of legal interpretations is required of the constitution. In fact, I'll go so far as to say, and I'm stealing this from Judge Easterbrook, "You'd have to get rid of federal habeas review, state court convictions as well," because their Congress has commanded that federal courts defer to state court interpretations along those lines.
So, I don't think any of those arguments work, the Article I or Article III, although they do raise good policy points. The one point that I would flag is, it gets more complicated with criminal law, and that's why Chevron doesn't apply to criminal law. And I think it also gets a little bit more complicated on the Article III front with private rights because you could imagine there'd be some issues there. But that's, like, way into the weeds. The vast majority of Chevron deference deals with public benefits and not private rights.
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