What’s Wrong with Deference?

But judges need canons of interpretation, one might argue. Why are judicial deference doctrines any more dangerous or problematic than other doctrines, such as the Rule of Lenity or even textualism?

Deference Dictates Outcomes in Favor of the Government

The results speak for themselves. Judicial deference doctrines stack the deck in favor of the government, increasing the already-herculean burden on private citizens defending themselves against the power and might of the federal government.

Agencies win 77.4% of cases when circuit courts apply Chevron, 56.0% of cases when courts apply Skidmore, and only 38.5% when courts review agency action de novo.

Agencies win 93.8% of cases when courts reach Chevron’s step two (asking if the agency’s interpretation was reasonable), but only 38.8% of cases decided at step one of the analysis (asking if the statute speaks directly to the question at issue, in which case agency interpretation is not used).

These numbers aren’t merely staggeringly high, they shock the conscience. Thanks to judicial deference doctrines like Chevron, the government goes to bat with bases already loaded and 10 runs on the scoreboard.

Not surprisingly, the D.C. Circuit, the court that hears the most cases involving administrative agencies, applies Chevron to 88.6% of its administrative law cases, more than any other any circuit. But a little less obvious is the fact that the D.C. Circuit applies Chevron to 80.7% of informal agency interpretations. Contrast these informal interpretations with notice-and-comment procedures or formal agency adjudication, and one begins to see that the fix is, quite literally, in. For context, the DC Circuit’s 84.1% is twice the average rate at which other circuits apply Chevron to such informal interpretations.

Agencies win 93.8% of cases when courts reach step two (whether the agency’s interpretation was reasonable) of the Chevron analysis but only 39.0% of cases decided at step one (whether the statute speaks directly to the question at issue, foreclosing any contrary agency interpretation). How often do courts reach Chevron step two, where the government wins 93.8% of the time? In a staggering 70% of cases applying Chevron.

Deference Interferes with Independent Judicial Judgment

Put simply, judges have a duty of judgment. To be precise, they have a duty to exercise their own independent judgment in accord with the law of the land. This is the core of their very office.

It is what Justice Marshall alluded to when, in Marbury v. Madison (1803), he said: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.”

Article III of the Constitution explicitly states: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Deference Violates Due Process, Creating Illicit Bias in Favor of One Party Over Another

As first noted in Professor Philip Hamburger’s article “Chevron Bias,” a court’s decision to defer to a party’s interpretation of law – here, the government’s – creates a violation of the Fifth Amendment’s guarantee of due process under the law.

A systemic preference towards government parties puts in jeopardy our courts’ inviolable duty to dispense independent and unbiased justice. Instead of affording everyone their “day in court”, Chevron deference shirks the court’s independence and asks the judiciary to hand a victory to one of the parties in a case. And although Chevron deference is subject to the question of whether the government’s interpretation is “reasonable”, this standard is what our Founders would call a “parchment guarantee” – all but useless in practice. The previously mentioned statistics prove just as well that “reasonableness” has never stopped courts from giving the government a carte blanche to do whatever it pleases.

Chevron’s systematic bias in favor of the government is even more egregious when you consider that the government is already far more powerful than any individual litigant. The courts – instead of being a check on government power – actively enable government overreach by deferring to pro-government interpretations of law. In the process, they deprive aggrieved parties of the due process that they are entitled to by the Constitution.

Our country would never tolerate such extreme judicial bias in any other situation: Why should we tolerate it when the favored party is the government?

Deference Empowers and Encourages Governing by Executive Command

Since the ascent of the administrative state after Franklin D. Roosevelt’s presidency, rule by executive fiat has increased at a breakneck pace. In his first 100 days in office, President Biden signed more executive orders than the last three presidents combined – a trend that has been swelling for decades. For more on the recent explosion of executive orders, see our analysis at “Dazed and Abused.”

Chevron, which enables bureaucrats in the executive branch to distort the text of the law with near impunity, is partially responsible for this trend. Furthermore, these abuses are not merely abstract – they affect everyday Americans in major ways. For example, when the CDC imposed sweeping mask mandates in the workplace and healthcare system, they used a patchwork of statutes related to fumigation, workplace safety, and other laws which were totally unrelated to pandemic safety. And although the Supreme Court delivered a partial victory against the administrative state during COVID-19, many other absurd, bureaucrat-made laws rest safely under the aegis of Chevron deference.

With the administrative state controlling more and more of our life – from the food we buy, to the air we breathe, and even how we go about basic, day-to-day activities – the threat posed by Chevron grows more and more disastrous every day. That is why the New Civil Liberties Alliance directs its attention towards stopping the runaway administrative state in its tracks; but this cannot be done without dismantling judge-made doctrines that rule via executive command, like Chevron deference.