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.

In a recent essay, “The Constitutional Case for Chevron Deference,” professor Jonathan Siegel comes to Chevron’s defense. Accepting for the sake of argument assertions by Hamburger, Gorsuch and others that courts must exercise independent judgment about the meaning of federal law, Siegel maintains that Chevron deference is fully consistent with this role. Chevron does not delegate the interpretive function to agencies, but rather asks courts to view ambiguous statutes as creating a menu of permissible actions from which the agency can choose. As Siegel puts it, “[a]n interpretation that determines that a statute delegates power to the executive is still an interpretation.” For the same reason, he disagrees that Chevron deference requires courts to affirm agencies’ self-interested interpretations of statutes. Congress may permissibly vest policymaking discretion in federal agencies; allowing the agency, rather than the court, to choose among the options permitted by ambiguous statutory language does not violate due process. In short, Congress is free to draft ambiguous statutes that operate as delegations of policymaking power to agencies.

Siegel acknowledges, however, that Congress may not have intended courts to treat statutory ambiguities as delegations of authority to agencies. He does not defend Chevron deference against this critique, but he points out that Congress’ silence on this question implies that it has acquiesced in the practice. That said, the House of Representatives has now twice passed a bill that would abolish Chevron deference, suggesting that the debate might ultimately be settled in the halls of Congress rather than by the justices of the Supreme Court.