Properly viewed, Chevron honors the separation of powers

This week, members of Congress will consider H.R. 4768—known as the Separation of Powers Restoration Act (SOPRA)—which would amend the Administrative Procedure Act to mandate that courts review all questions of law with a “de novo” standard of review. If this law passes, courts would be required to decide all questions of law without affording any deference to the statutory interpretations of agency experts who have expertise in the subject matter and the technical details of implementing and enforcing statutes.

SOPRA would fundamentally change the relationship between court and agency. For decades, courts would defer to the agency’s interpretations of the statutes that grant authority to the agencies, as long as Congress properly delegated that authority to the agency and the agency interpretation was promulgated under that authority. 

{mosads}This standard is widely known as the Chevron doctrine, which originated from a 1984 Supreme Court decision that determined that policy questions should be primarily left to the policy-making branches to resolve. Basically, when Congress leaves a gap in a statute, it is delegating to the agency to fill in the gap since the agency is staffed by subject matter experts who are more equipped to make these technical policy decisions. Under the Chevron doctrine, the rules and regulations promulgated by agencies have brought landmark legislation into force, providing the American people with vitally important health, safety, economic, and environmental protections.

Further there are real institutional dangers for the courts. For example, how to manage the change in workload, since Chevron often permits more efficient judicial resolution (Let’s Chevronize this case, judges have said and move it along). And, what happens to related doctrines under SOPRA like the Skidmore doctrine, which gives weight to agencies views when they are persuasive, even if not required to do so per Chevron. Finally, what happens to judicial fact finding under the de novo standard, especially if agency rule review is venued in the district courts. Can you still have deference to agency developed facts, if not to agency developed law?

SOPRA is backed by members of Congress who created the Article 1 Project, which seeks to restore the legislative branch’s primary role in the separation of powers. Supporters of the bill see SOPRA as a solution to reassert Congressional power over executive power. But they have missed the target here. If Congress is concerned with the application of the Chevron doctrine in particular instances, they can focus on legislative drafting to remove statutory ambiguity, since it is only when Congress has not spoken clearly that the Chevron doctrine arises.

Chevron may be among the most politically neutral cases the Supreme Court has ever decided. It was written by the liberal Justice Stevens based on the reasoning in a prior case written by the conservative Justice Rehnquist. Chevron said: leave policy questions to the political branches and have the courts, who have no political constituency, stay out of it, unless there is a clear legal question to decide. Remember the context of Chevron. It was reviewing a deregulatory rule of President Reagan’s EPA involving how to manage more effectively emissions from power plants. On the Court, the liberals bowed to the conservatives and agreed to keep the courts out of political thickets. This is admirable judicial diplomacy. 

So what we have with this bill is a goose and gander problem. It’s ironic, but some Democrats in Congress tried a similar idea years ago with the Bumpers Amendment sponsored by Sen. Bumpers of Arkansas. There was a lot of academic opposition led by my dear departed friend Professor Nino Scalia, who feared the possibility that liberal judges would use the amendment to derail the deregulatory moves of the Reagan Administration

Chevron isn’t just a case or even a doctrine, it is a regime where the federal courts, with extensive Supreme Court guidance over the years, have worked out an efficient way to allocate responsibility under the separation of powers. And if change is needed for the established doctrinal guidance for judicial deference, the Court—not Congress—can provide it. Chevron is one of the most cited case in the federal courts, the most written about case in the scholarly literature, and the most taught case in law schools and other related university departments. So this is no small matter, even if it involves just two small words. This legislation would threaten the important rules that implement laws passed by Congress to protect the American people. 

Put simply, SOPRA should not become law.

Paul R. Verkuil is a Senior Fellow at the Center for American Progress and is former chairman of the Administrative Conference of the United States. Verkuil has authored numerous books and articles on administrative law and regulation.