Don’t Discount Administrative Law: Chevron May Save Your Life
By Paul H. Merry
The surest way to win rolling eyes and deep groans from law students, and from many practicing lawyers, too, is to mention administrative law. The name alone evokes images of excruciatingly tedious and interminable forms, row on row of the Code of Federal Regulations stretching out as far as the eye can see on endless library shelves, and of oblivious bureaucrats so enmired in an odious process that they long ago lost sight of the purpose of their existence.
But opponents of the latest past president’s determined attempts to undo and demolish years of careful regulation aimed at protecting the environment, consumer rights, and a host of other public interests, so that his billionaire cronies could become even more outrageously wealthy would be wise to bear in mind that they owe a huge debt to the much-maligned administrative law system. This highly evolved mix of constitutional, statutory, and decisional jurisprudence has been the principal, and most effective, impediment thus far to his efforts at destruction, protecting much of the regulatory system until he lost his bid for re-election.
Contrary to the claims of anti-regulation, anti-government conservatives, issuing a regulation does not happen at the whim of a tree-hugger. Rather, no new regulation will succeed in the absence of scientific and experience-based demonstrations that it is necessary. The system of statutes and court decisions that make up the field of administrative law requires an extensive process, usually taking years before a regulation can be put in place. In addition to expert, scientific opinion and painstaking descriptions of the grounds giving rise to the proposed regulation, extensive public testimony from all interested parties form an important part of the record, without which a new regulation is unlikely to survive the judicial scrutiny to which it is more than likely to be subjected.
As logic requires, the process for repealing existing regulations can be equally thorough. When regulations are supported by extensive scientific evidence, learned opinion, and public testimony, it would be irrational to repeal a regulation unless even more evidence support that repeal. This is one thing that the former president’s zealous anti-regulation minions appear never to have fully understood; and as a result, the massive assault on the carefully developed regulatory system bore but little fruit.
This would be all well and good were not much of the administrative law system, as noted, decisional, judge-made law; and like other decisions, the decisions that have built the system can also be reversed if they come before judges so inclined. This reality throws into dramatic relief the importance of our judicial system being composed of jurists who understand and respect the importance of the administrative law system. And to assure that judges who share such respect are appointed, it is critical that the United States Senate, which is responsible for approving judges, contain a majority of senators who will stand behind that system. Which, of course, is where Stand Up For Workers Political Action Committee comes in: the funds we raise, through generous donors such as you, are directed only to senate candidates who share these values.
One specific issue powerfully illustrates this point. Most Americans understand that under our three-branched democracy, the judicial branch of government acts as a check on the actions of the legislative and executive branches, holding their actions up to scrutiny for consonance with our Constitution. Since the early years of the republic, it has been clear that the courts are the branch that scrutinizes and interprets the statutes that Congress passes and the Executive signs.
The administrative system, however, (which makes up the bulk of what most people think of as the government ) adds a few wrinkles to the process of checking and balancing. First, one of the principal justifications for the creation of the administrative agencies through which our government functions, is that many issues our government confronts, from water and air purity to reliability of investments to safety of air (and other) travel, to allocation of the radio-magnetic frequency spectrum, to consumer fairness in the marketplace, to wildlife management, requires great scientific understanding and expertise. And notwithstanding the settled notion that the courts are the branch empowered to determine the constitutionality of laws passed by Congress, empowering the courts to review and reject regulations that are based on extensive research and scientific investigation of issues of which judges may have next to no understanding, appears illogical if not foolish, particularly if it appears judges with a particular ideological bent may be involved. The question of whether courts could be compelled to abandon their law-interpreting, core function, and be required to defer to the judgment of expert scientific specialists in the agencies, was clearly seen as a challenge to the founding principles of our democracy.
Several decades ago the Supreme Court took the bull by the horns and issued its famous decision in Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984). In a Solomonic action that many find unsatisfactory even to this day, the High Court decreed that when the lower courts are confronted with a challenge to the regulation, they must apply a three-part test before assuming the authority to review, and possibly overturn an administrative agency action. First, lower courts must determine whether Congress “has spoken to the precise question at issue,” in the statute establishing the agency or elsewhere. If so, the inquiry ends, because the courts and agencies must “give effect to the unambiguously expressed intent of Congress.” If the statute is silent or ambiguous regarding the specific point, the court must then decide whether the agency interpretation is “based on a permissible construction of the statute.” If the statutes explicitly left a gap in a program, the agency’s filing of the gap by regulation must be upheld so long as it passes the standards of the Administrative Procedure Act, including not being arbitrary, capricious, or contrary to the statute. Unless the agency action clearly fails to pass the first two steps, the court must defer to the agency’s expertise and decline to overturn the questioned action.
Many critics of this approach have pointed out that the reliance on the court to determine whether the agency’s interpretation of the statute is “permissible,” to set the boundaries of court deference is hardly clear and certain. But this criticism is somewhat laid to rest on the basis of extensive jurisprudence defining the word and how it is to be used. And beyond this, of course, is a now-lengthy history of courts using the Chevron mechanism successfully. The more serious problem is the mechanism itself. However unsatisfying its language may be, the Chevron test has stood for decades now as a bulwark against the wanton destruction of painstakingly developed regulations in many crucial areas of American life, some of which are listed above. But as with any judge-made law, the mechanism can be overruled and consigned to the (famously vast) judicial scrap heap.
Indeed, one recent appointee to the Supreme Court has been accused of being a Chevron opponent. And given the ideological stance (unfortunately) adopted by others on the Court, that opponent, Justice Kavanaugh, could find a majority to overturn Chevron and replace it with a much less regulation-neutral position, liberating lower court judges so inclined to lay waste at will to the regulations Americans have come to take for granted as they assume the safety of their food and drugs, their air and water, their airplanes and countless other features which make modern life so wonderful. And with a concerted (and largely successful) effort to place anti-regulation ideologues on the bench during the past administration, such freedom would almost certainly be widely exercised.
So again, it is important to assure that judges named to lifetime positions on our federal courts are not hostile to the Chevron doctrine; and the way to do that is to be vigilant about nominating and electing senators who likewise support the government’s role in assuring that the technological wonders that permit us to live in a world beyond the dreams of our forebears are safe and not inviting the death of the only planet we have for a home. And while the role of money in politics is certainly open to criticism as now practiced, those donations made to Stand Up For Workers will be used in their entirety to support the process of vetting candidates for those senate seats, letting the public know their positions, and assisting those who meet our criteria to the greatest possible extent. So please give generously. Your country requires no less.