Chevron deference doctrine should not be a factor in Kavanaugh confirmation process

Progressives who are hyperventilating over a feared upcoming demise of Chevron deference if Judge Brett Kavanaugh is confirmed to fill the Supreme Court seat being vacated by Justice Kennedy should ask themselves if the effect of vesting more authority in the federal courts when it comes to administrative law questions is the disaster they are making it out to be. It is an echo of the debate over the last nominee, now Associate Justice Neil Gorsuch, who has written opinions notably hostile to the doctrine.

Chevron v. National Resources Defense Council, decided in 1984, sets up a two-part test that determines who decides what happens if the language of an administrative regulation is vague or impermissible. In the Chevron case, the high court decided that the first step was for the court to decide whether the statutory language in question is ambiguous. If it is not, then the language must be given its unambiguous meaning. However, the Chevron court left it to the agency to give a “reasonable” interpretation if the disputed language is found to be ambiguous. If the interpretation is not reasonable, then interpretation goes back to the court.

{mosads}And to be clear, regulations don’t just spring forth unbidden from the agencies in the first place: they go through an extensive notice and comment period, when everyone from industry to advocacy groups get to weigh in.

The Roberts Court has been nibbling away at this deference, and its critics allege that is because of hostility to the so-called administrative state: the maze of regulatory agencies that have sprung up ever since the New Deal, staffed by scientific and economic experts, civil servants who are subject to few political levers. But a lot has happened in the past eight years, and liberals should take note before taking aim.

During the former president’s two terms, he selected 55 of 179 court of appeals judges in the nation — the balance, for the most part, a mix of Clinton and Bush II appointees. Those judges decide more than 50,000 cases each year to the Supreme Court’s 80. President Obama also selected 268 of 677 judges on the district courts. According to Kevin Judd, president of the National Bar Association, a network of thousands of black judges, educators and scholars, “President Obama … had a stunning impact on the federal bench,” in particular, in terms of diversity.  

And while about 100 vacancies are now in place (largely because of Republican obstruction of Obama picks in the last two years of his second term ), in his first year President Trump has succeeded in pushing through only a few judges.

This means that in any Chevron challenge, the case is quite likely to come before a judge appointed by President Obama. Do liberals really want regulations interpreted by President Trump’s cabinet and the staff they are appointing as thousands of agency employees retire or are forced out of their positions? This is a great example of being careful what you wish for, and it is why a rule of law regime creates rules that protect each side when their fortunes dwindle.

Common sense counsels that we leave technical and scientific interpretation to content area experts, but leave interpretation of what the law says to the courts. The conservative argument against Chevron deference is that it vests too much authority in the hands of unelected bureaucrats and left-leaning career employees, and is an abdication of the responsibilities of the judiciary. Right now that argument is flipped on its head. A better approach than gaming out who will be winners and losers in a particular area of law is to adopt neutral principles you can live with when your team is up and when it is down.  

Meryl Chertoff is executive director of the Aspen Institute Justice and Society Program and an adjunct professor of law at Georgetown University Law Center.