The End of Chevron…and the Future of Admin Law Courses?
On Friday, June 28, 2024, in Loper Bright Enterprises, et al. v. Raimondo and Relentless Inc. v. Dept. of Commerce (a huge win for NCLA!), the Supreme Court overruled Chevron deference—the judicially invented doctrine that required federal judges to defer to administrative agencies’ interpretation of statutory language.
For some forty years, the Chevron doctrine allowed the president to make laws through executive-branch agencies which exploited statutory ambiguity to promulgate regulations. Those rules and regulations, such as the recent ones canceling student loans, were often ones that Congress lacked the votes to pass as legislation. The administrative agencies, comprised of unelected, unaccountable government officials, thus effectively “made law”—something Article I of the constitution placed squarely within the legislative branch’s authority. Then, when individuals negatively impacted by those rules and regulations challenged them, Chevron deference required courts to defer to the very agency that wrote the law. As Professor Philip Hamburger explained in Chevron Bias, this mandated abdication of judicial authority infringes on the judiciary’s Article III power to say what the law means.
Although the Chevron doctrine, which tipped the scales of justice in favor of the administrative state—a due process concern in its own right—ran afoul of the principle of separation of powers, for forty years it controlled the landscape of administrative law. With Chevron now overruled, the legislative process will be properly returned to Congress and the judiciary will once again fulfill its constitutionally mandated job of interpreting laws.
A less significant—yet independently fascinating—secondary effect of the official overruling of Chevron deference will be seen this fall when students return to law school: the remaking of administrative law courses.
How will the elimination of a major administrative law doctrine change the way administrative law is taught?
While rarely a required course in law schools, faculty and students alike often recommend Administrative Law as an elective. Advocates for the elective often tout the course as crucial for a successful legal career, especially for those hoping to practice constitutional or corporate law. Although some students see the material as overly tedious, administrative law nonetheless remains a prominent elective in American law schools.
But with a survey of past syllabi from around the country revealing judicial deference, which is inextricably tied to the Chevron doctrine, accounting for a large portion of course coverage, the overturning of Chevron deference raises the question of what an Administrative Law course will now look like. While some coverage of Chevron will continue, to allow students to understand the evolution of the law, a deep understanding of how to apply the Chevron doctrine is no longer necessary.
What does one do when the Supreme Court eradicates, in a single opinion (technically two cases – Relentless and Loper Bright), an entire quarter of the content for your course? What do you fill the void in the course with?
Chevron answered that question too: The answer is, you don’t fill the voice; you instead recognize the administrative state and the many doctrines surrounding it, fundamentally conflicting with our constitutional structure. Rather than remake administrative law courses more robust with coverage of other doctrines, law schools should use the opportunity of the overturning of Chevron to return to First Principles.
How can the administrative state be reconciled with the separation of powers? With due process? What other doctrines besides Chervon deserve to fall?
Professors of Administrative Law have two options: to either teach students the material as if they were in a trade school, merely deleting Chevron from the coverage as if it were an antiquated combustible engine in a course on EV, or focusing on the theory of the twin cases of Loper Bright and Relentless, and the fundamental flaw in administrative law—the courts’ too-long-standing disregard for our constitutional structure.
July 18, 2024