Overturning Judicial Deference to Agencies Would Turn Judges Into Policymakers

Coalition for Sensible Safeguards Calls on Lawmakers to Oppose Legislation That Seeks to End Chevron Deference

July 11, 2015

Contact: Michell McIntyre, mmcintyre@citizen.org, (202) 454-5156
David Rosen, drosen@citizen.org, (202) 588-7742

WASHINGTON, D.C. – Lawmakers in the U.S. House of Representatives should vote against an anti-regulatory proposal that would allow non-expert judges to second-guess complex policy determinations made by expert agencies, the Coalition for Sensible Safeguards said today. The misleadingly named Separation of Powers Restoration Act (H.R. 4768) does the opposite of its title and empowers the courts over the legislative and executive branches. H.R. 4768 seeks to end judicial deference to agency expertise and thwart crucial public protections, the coalition said. The bill is scheduled for a vote tonight.

When a federal regulation is challenged in court as arbitrary, capricious or in violation of a statute, the court begins by trying to discern Congress’ intent in the authorizing statute. To do so, the court interprets the statutory language in light of its context, the statutory purpose and the legislative history. But sometimes these tools of statutory construction fail to answer the question at hand. The court may determine that the statutory meaning is ambiguous or that Congress gave the agency discretion. In such cases, the court will defer to the agency’s interpretation of the statute, in recognition of its subject matter expertise and its role as one of the two policymaking branches of government.

This principle of judicial deference dates to not long after our nation’s founding but was established as a bedrock principle of administrative law by the U.S. Supreme Court in the 1984 case, Chevron v. Natural Resources Defense Council. Known as Chevron deference, this principle has been applied in hundreds of federal court cases and has been endorsed with little controversy by countless conservative, moderate and liberal Supreme Court justices and federal court judges. H.R. 4768, however, seeks to abolish judicial deference to agencies’ statutory interpretations in rulemaking.

“This bill rings a dinner bell for judicial policymaking, which is why it’s shocking to see lawmakers who call themselves strict constructionists lining up behind it,” said Robert Weissman, president of Public Citizen and chair of the Coalition for Sensible Safeguards. “H.R. 4768 invites judges to dispense with both congressional intent and agency expertise and substitute their personal policy preferences.”

In June, the White House issued a statement of administration policy against (PDF) the legislation. But the most telling critique of attempts to overturn Chevron deference comes from former Supreme Court Justice Antonin Scalia. Writing for the majority in City of Arlington v. F.C.C., Scalia argued that overturning judicial deference to agencies would render “the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos.”

Substantial academic literature and numerous legal experts agree that judicial intrusion into agency rulemaking is one of the main drivers of regulatory paralysis. Eliminating Chevron deference would compound that problem by encouraging additional lawsuits, as well-resourced corporate interests would invite potentially sympathetic judges to substitute their policy preferences in lieu of agencies’ reasoned decision-making. The results would be a rulemaking process that is further rigged in favor of powerful corporations; greater consolidation of power in the hands of judges who are less accountable to the public; and further delays in a regulatory process that already is slow to protect the public.

Regulatory delay is endemic. In the energy sector, offshore drilling safety measures to prevent another BP oil spill in the Gulf, new safety measures to stop oil train derailments and explosions, and new energy efficiency standards to benefit consumers all took many years to finalize. In the food safety sector, implementation of the 2011 Food Safety Modernization Act was not completed until June 2016, after agencies missed every statutory deadline and despite several tainted food scandals in the interim. And in the financial sector, a significant portion of Dodd-Frank’s required rules have yet to be finalized or even proposed, nearly six years after the law’s enactment.

Congress should be looking for ways to strengthen our country’s regulatory system by identifying gaps and instituting new safeguards for the public. Overturning Chevron deference, as H.R. 4768 aims to do, would accomplish the opposite, ensuring even more delays in the implementation of health, safety and financial protections for the public, the coalition maintains.

The Coalition for Sensible Safeguards urges lawmakers to reject H.R. 4768.