Academic highlight: Hamburger and Siegel on the constitutionality of Chevron deference

“Is Chevron deference unconstitutional? Congress, several justices and legal academics are debating the legitimacy of this decades-old principle of administrative law.

In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc.decided over 30 years ago, the Supreme Court declared that courts must defer to a federal agency’s reasonable interpretation of ambiguities in the agency’s governing statute. Although the doctrine has been narrowed in recent years, it has remained a bedrock principle of administrative law. Recently, however, both Justice Clarence Thomas and Justice Neil Gorsuch have questioned the constitutionality of Chevron deference. Just a few weeks ago, in his opinion for the court in SAS Institute v. Iancu, Gorsuch began by noting SAS Institute’s proposal that the Supreme Court eliminate Chevron deference altogether — an idea that the court chose to “leave for another day” rather than reject out of hand. Congress has also expressed concern. In both 2016 and 2017, the House of Representatives voted in favor of a bill abolishing Chevron deference on the ground that it is “difficult, if not impossible, to square with separation of powers.” Now, legal academics are taking sides in the debate as well.

Professor Philip Hamburger is one of Chevron’s skeptics. In his 2016 article, “Chevron Bias,” he argues that courts have a constitutional obligation to exercise independent judgment when interpreting statutes. In Marbury v. Madison, Chief Justice John Marshall declared, “It is emphatically the province and duty of the Judicial Department to say what the law is.” Yet Chevron gives agencies the power to “say what the law is,” requiring courts to accept an agency’s reasonable interpretation of a statute even when the court would have reached a different conclusion. Worse, says Hamburger, Chevron deference produces “systemically biased judgments” by requiring that judges defer to the reasoning of a self-interested party to the case, which he concludes is a “brazen violation” of the Fifth Amendment’s due process clause.”

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