‘Common Law’ S6 E2: Was Chevron Wrongly Decided?

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Risa Goluboff: The case that launched thousands of law review articles is back before the Supreme Court. Will Chevron, which said courts should defer to administrative agencies’ interpretation of ambiguous statutes, be overturned? On this episode of Common Law, UVA law professors John Duffy and Dan Ortiz will discuss the history and future of the Chevron doctrine.

John Duffy: So, at the Supreme Court, this case was considered a nothing case.

Dan Ortiz: Justice Stevens, who had written Chevron, said, “No, no, you just apply all the tools of statutory construction,” and Scalia said, “No, no, no, this is a monstrosity.”

John Duffy: Chevron was on my list of things that makes no sense and that is in deep conflict with the statute.

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Risa Goluboff: Welcome back to Common Law. I’m Risa Goluboff, the dean of the Law School. For our sixth season, we are inviting professors with different views to have a free exchange of ideas about a particular issue. Just like in our faculty workshops and the halls that happens all the time at the Law School, we’re discussing cutting-edge legal issues and research – just on a podcast. For this episode, we’ll be joined by UVA Law faculty members John Duffy and Dan Ortiz. Thank you both so much for being on the show.

Dan Ortiz: Thank you.

John Duffy: Thank you, Risa.

Risa Goluboff: So, Dan, can you tell us a little bit about John, and then John, you can tell us about Dan.

Dan Ortiz: Absolutely, Risa. John is a leading expert in administrative law, torts, and intellectual property. In the field of intellectual property, in fact, he has been identified as one of the most influential people in the nation and even the world. He is also author of a highly influential article arguing that Chevron was wrongly reasoned, one that won a prize from the American Bar Association. Before joining academia, John clerked for U.S. Supreme Court Justice Antonin Scalia and worked for both the Justice Department’s Office of Legal Counsel and for Covington & Burling.

John Duffy: Dan has argued before the Supreme Court numerous times and for many years led the law school’s nationally renowned Supreme Court Litigation Clinic. He teaches constitutional law, administrative law, electoral law, civil procedure, and legal theory. He’s also a classic polymath, having majored in math, English, and history as an undergrad at Yale. Dan, in a way, clerked for two justices on the Supreme Court. First Stephen Breyer, when Stephen Breyer was a judge on the Federal Court of Appeals for the First Circuit, and then for Justice Lewis Powell when he was serving on the court.

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Risa Goluboff: Wonderful. And John, eventually, I’ll want to hear more about why Justice Scalia initially supported Chevron, and you never did. For now, we’ll be right back to talk about the history and future of the Chevron doctrine.

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Risa Goluboff: Okay. Let’s start with the basics. What is the Chevron doctrine, and why is it considered so important?

Dan Ortiz: Well, the Chevron doctrine is a way of approaching how much deference courts should give agencies’ interpretation of their own organic statutes. It classically has three steps. The first step, known as Chevron step zero, concerns whether Chevron even applies or not. The second asks whether Congress has specifically spoken to the issue to make its choice pretty clear. And the third says that if Congress hasn’t –it’s not clear enough – then the agency has some discretion. What it basically does is it opens up from the normal view of legal interpretation where everything comes down to a pinpoint, either yes or no, this is what the law requires, to one where the law defines a certain range. So the law definitely might not mean this, the law definitely might not mean that on the other end, but in between, the agency has the discretion to decide where the law ends up.

Risa Goluboff: It’s clear this has gone through lots of iterations over the years. So, John, what are the criticisms against the Chevron doctrine and what’s the legal case for not using the Chevron doctrine anymore?

John Duffy: So I think the case against the Chevron doctrine starts with the Administrative Procedure Act, which the Supreme Court over and over again has said is the basic framework that courts should use in reviewing the actions of administrative agencies. And one section in that, section 706, lays out a framework for reviewing agency action. And its first sentence begins by saying that courts shall decide all issues of law, and among other things, interpret constitutional provisions and interpret statutes. It doesn’t distinguish between constitutional provisions and statutes. There’s no hint in that first sentence of this section that there should be any kind of deference to agency determinations, which is shockingly jarring if you think there should be deference because the rest of that very section does articulate deferential standards for reviewing agency decisions about facts and policies and other things like that. So that’s the first really big stumbling block that the Chevron doctrine has.

Risa Goluboff: Why do you think the Administrative Procedure Act didn’t play a role? Or why did the court depart from that in Chevron?

John Duffy: Well, I think the reason why they did not discuss section 706 is it was not briefed at all. I’ve been through the entire briefs, nobody mentioned it. This is a different era of the court when the court was not so textualist. It turns out there’s also a super duper technical reason which is in the Chevron case itself, the Chevron case involves the Clean Air Act. And it turns out that there’s a section in the Clean Air Act that says section 706 doesn’t apply just to that kind of situation. So there is a technical bug about 706 in Chevron itself. In all the other cases that the Chevron doctrine applies, 706 does apply. So that’s one very good reason why it’s not there. I will say, and this is quoting from Justice Scalia, late in his life, where he began to, I think, rethink Chevron. This is less than a year before he passed away. He said, “Heedless of the original design of the APA, we have developed an elaborate law of deference to agencies’ interpretations of statutes and regulations.” Well, if you know Justice Scalia’s jurisprudence and he sets up sort of, we didn’t look at a statute, and instead we did what, you know, courts wanted to do. That’s not a compliment to the court-developed doctrine.

Risa Goluboff:(laughing) Yeah. So Dan, what do you think of this idea of the APA and John’s reading of it?

Dan Ortiz: John’s absolutely right that 706 says the court shall determine all questions of law de novo. The question is, what does that mean in terms of how the court determines it? And it doesn’t really say much about that. What this means is the court just grinds the traditional tools of statutory construction and says the statute means that or that. It doesn’t resolve in this, like, two step, which says, well, this is possible, so we should kick things over. But in some areas, the court has done that. Just last year, for example, in the independent state legislature case, the court said that the standard is whether the state courts were acting within the range that the state legislature had allowed them to operate in. So it’s not completely uncommon, but you know, as John has said, the landscape here has completely changed. When the APA was passed, 80 years ago or whatever, the world was very different. Especially after the 1960s, which saw the rise of a lot of powerful agencies, particularly the EPA.

Risa Goluboff: All right. So we’re going to come back to that, but John, you were going to move on to a second reason, past the APA.

John Duffy: Yes. The second reason to really question Chevron is the court came up with an implicit delegation theory, where they said, “Well, sometimes Congress delegates power to an agency implicitly.” This is a disastrously bad theory, particularly because it was so unnecessary. The EPA has a substantial delegation of power that was quoted in the government’s brief up in the first few pages in full that said, “Here’s why the agency gets to make the call in this case.” And that was really just something that the court made up. They didn’t read the briefs carefully or whatever, but it’s just a really bad theory. The court then went on to say, “Well, the reason why Congress might want to delegate things to an agency implicitly are because of its expertise in the subject matter and also that an agency is politically accountable. Now, those are in fact, good reasons why Congress may – may – want to delegate power to an agency, but it’s not perfectly correlated with those two things. So for example, one of the agencies I studied is the Patent Office, a very old agency that simply doesn’t have the kind of delegated power that the EPA does, yet it’s very expert and it’s in the Department of Commerce. It’s fully politically accountable. And there are other agencies like the EEOC, which in very early cases soon after the Chevron case was decided, the Supreme Court said the EEOC doesn’t get Chevron deference. But it made no sense given the original opinion. I actually think that it’s correct that the EEOC shouldn’t get Chevron deference …

Risa Goluboff: But that’s because you think NO ONE should get Chevron deference, not because the EEOC was somehow differently situated.

John Duffy: That’s right. And I hope to talk more about a delegation theory of power to agencies, which I think is actually important to talk about. Um, and indeed I have a forthcoming article called “Chevron de Novo,” sort of a de novo look at Chevron itself, with the subtitle, “Delegation, Not Deference.”

Risa Goluboff: Mm-hmm.

John Duffy: I think that the best way to explain what happened in Chevron and what should happen in Chevron is that the courts should recognize the scope of delegated power, not be giving the agency deference, but just saying the agency has the power to make these calls. And those are very, very different theories.

Risa Goluboff: Dan, do you have anything to add to what John has said thus far?

Dan Ortiz: Well, I think John is absolutely right that the policy reasons are political accountability and expertise, and you can argue about that. The legal theory behind it has to be one of delegation, although both Justices Scalia and Breyer said that that’s, like, silly. There’s no indication really that Congress intended that kind of delegation. So I think, you know, if you’re pursuing a delegation theory, which is the one that makes most sense, one way of seeing Chevron is where do you place the sort of default. Do you require a clear statement – clear textual statement, in particular, which I think is where John would be – that Congress actually intends to give the, uh, has given the agency this power. Or do you require a kind of clear statement in the other direction? The best defense of what the courts have done is they’ve tried to find out what Congress would have wanted, applying a mix of textualism, purposivism, history, legislative history, and all that kind of stuff. So much of the question comes down to how you answer that question. Is it just textualist or do you use other canons of statutory construction? I think that makes a big difference. And then also where you place the default – against delegation or in favor of it unless Congress says otherwise.

John Duffy: So I think the key to administrative law is delegation. It sort of explains the whole field. In fact, in teaching administrative law, you have to start with the so called non-delegation doctrine, which does allow Congress to give power to agencies to decide certain questions. A delegation theory is radically different than a deference theory. Um, so if you were, let’s say, a builder and somebody gave you specifications about how to paint the house, and the specifications said, well, paint the house a reasonable blue color. And you said, well, gee, what does that mean? What is a reasonable blue color? And you asked, let’s say, an expert in painting. And they said, “Oh, you know, reasonable blue. That’s actually known in the art that that’s a, that’s a type of blue. It’s sort of halfway between royal blue and eggshell blue. We know exactly what that means.” And you say, well, then I’m, I’m really deferring to that interpretation. That person is an expert in this field, really knows a lot about what this concept means. And I’ll defer to their interpretive power. The delegation theory is if you had these specifications, and in one section, it said, “Paint the house a reasonable blue.” And then in another section, it said, “Oh, and by the way, all choices about style and construction of this house shall be handled by the reasonable choices of my designer, whose name is hereby given.” And you’d say, oh, okay, well, reasonable blue, if I need to know what that means, I have to go and talk to the designer, the chief designer, because that person has been delegated the power to make choices about what’s a good blue and what’s a bad blue in the house. And the latter hypothetical is exactly what the EPA had. The EPA had a statute in the Chevron case, had two sections that were crucially important. One said stationary sources are the crucial concept for regulation. Those are what need licenses if they’re going to pollute. They’re sources of pollution. If they’re stationary, in other words, not cars or trucks, they need permitting under this. But the statute never defined what a stationary source is. Another section said that the agency had power to make rules and regulations to carry out its functions under the statute. That was the section that the solicitor general in the Chevron case said, look, here’s our delegated power. We have a massive delegated power to sort of fill in the details of the statute. And that is also what the EPA itself said in the rulemaking. They said “stationary source” is a sort of empty vessel for us to fill with our rulemaking power. And then they filled it with a very complex definition about what was a stationary source. That’s a delegation theory. In other words, you’re not trying to interpret the words that Congress used. You, you go to interpret them and you find out, well, you know, they mean that in conjunction with this delegation, the EPA is supposed to fill it up with a reasonable choice. And that’s what the EPA said. That’s what the government said, at least in parts in its brief. I think that’s the right theory for what Chevron should have said, and reaches the right result. But it’s not about deferring to the agency’s interpretive prowess. It’s instead, recognizing the scope of its delegation.

Dan Ortiz: Yeah, I think it’s important to point out that in some ways, this is a battle about something much bigger than Chevron, so I’m interested in hearing what you think about this, John. As Richard Stewart noticed back in the 70s, American administrative law has never followed a kind of pure model. We had the first model in the late 1800s with the rise of the first big agencies where people thought of it as a legislative or congressional transmission belt where the delegation doctrine way of looking at things fits quite well. Then in the 1920s and 1930s, we added on another kind of model, which is scientific expertise, the rise of agencies like the Federal Trade Commission, the Federal Communications Commission and all that. Then there was a whole bunch of agency-building in the 1960s, when we were more politically conscious. We adopted what might be called a kind of micropolitical model, which is consistent with notice and comment rulemaking, where the agency is to be trusted or respected, because it’s consulted all the relevant constituencies and has cogitated about their input and then come up with a kind of solution. And then after that – and Justice Scalia was probably the biggest proponent of this view – we sort of moved over to an executive control model. The problem is we’ve never thrown over any of those models when we’ve added another on top. So it’s a little bit like geology, you know, stratification or something like that. So for a long, long time, American administrative laws reflect this mixture of impulses, somewhat contradictory. So there’s expertise, there’s delegation, following Congress, there’s following the executive, there’s following what the interested parties want, all that kind of stuff. And, in some ways, you know, moving to a pure delegation, especially if you take away implicit delegation, moves us closer to, like, the 19th-century view of it, which may be fine, you know, if that’s where you want to go. But in some ways, it’s a battle over much more than Chevron itself.

John Duffy: Well, I completely agree that this is a much larger battle and the history of administrative law is extraordinarily complex. I think one of the things that drags me into the history of administrative law is my focus on the Patent Office, which predates almost all the modern New Deal and Progressive Era agencies. And it did have a very narrow delegation of power. So that’s why it’s not able to do many of the things that other agencies like the EPA can do. But I think that a sort of look at the statute itself can help courts decide what path Congress wanted the courts to follow. And I think that’s the major flaw in the Chevron doctrine. People talk about whether this will lead to more power or less power for the courts, but what they’re failing to recognize is that Congress itself has preferences about how much power the agency should have vis-a-vis the courts. And it has expressed those reasonably well, I think. Sometimes there can be controversy, but if you read the Patent Act and you say, where does this agency have a general rulemaking power like the EPA? You’ll say, it doesn’t. It just doesn’t. It was written in the 19th century, by and large, it doesn’t have that kind of power. And there’s explanations for that. And if you read other agencies and say, well, this agency has massive power. Some agencies like the FCC have power to actually change statutory law, to modify statutory law. So they’re on the other far spectrum. They’re not really accounted for by the Chevron doctrine. They can actually override, to some extent, clear provisions in statutory law. So I think this focus on delegation would make things much clearer and much more simple rather than trying to, sort of, go through the layers of Chevron deference.

Dan Ortiz: Well, I think we agree on that, John. The only question is how you do the statutory analysis. I mean, the examples you point to I think are all valid. That’s probably going to be true for most of the older agencies, like the ones from the 19th century or maybe before. For ones, I think, that were set up between the 1920s and maybe the 1980s, not so clear. And the crucial question, I think, comes down to what should the default be, you know, that Congress has to override, and how does it have to override it? Does it have to be clear textual command, or can Congress use the traditional tools of statutory construction to get there? I think that was the first time where Justice Scalia jumped off the train, when in Cardoza-Fonseca, Justice Stevens, who had written Chevron, said, “No, no, you just apply all the tools of statutory construction,” and Scalia said, “No, no, no, this is a monstrosity, of course you can’t do that,” because if you apply the traditional tools of statutory construction long enough, you can always reach a result. But I think in the end, it’s going to come down to those two questions.

John Duffy: Well, I don’t disagree too much about that. I’d just say that I think the courts should generally start out by saying we’re interpreting the statute de novo, but they have to look for signs of delegation. I don’t think they’re that hard to find. In other words, before they ask, “What does stationary source mean?” They need to ask, “How much power does this agency have?” And I think that’s one of the real disappointments in the oral argument that I listened to and read the transcript of from these recent cases is there was very little discussion about how should Chevron be decided. So there’s a lot of criticism of the Chevron doctrine and then discussions of, sort of, grand theories of the law. But I think there was very little discussion of how the Chevron case should have been decided, which I think is kind of unfortunate. The advocate for one of the challengers, one of the petitioners, Paul Clement, started by saying, “We have no quarrel with the result in Chevron.” Uh, but he didn’t say why that’s true. He didn’t say, like, should the agency’s order there have been affirmed? I think it should have been affirmed. But he didn’t explain the theory as to how it should be affirmed.

Dan Ortiz: No, I agree. I think part of that is because these cases, they’re probably not the best vehicles to decide this question but, this has become such a huge, administrative law/cultural war issue if you will. It’s something that is a little red meat to a lot of these people who care about separation of powers, and so I think people are overloading expectations and hopes onto these two cases.

Risa Goluboff: You know, my understanding is originally Chevron was supported by many more conservative jurists, lawyers, and disparaged by more liberal ones. And that has flipped along the way. And so maybe we can set the stage by talking a little bit about the politics when Chevron was originally decided and then we can bring it up to the future and talk about what the politics look like now. Dan, do you want to start there?

Dan Ortiz: Yeah, so no, I think this is important, Risa, to explain the sort of political backfall to all of this. So think back to the early 1980s. You’ve got the Reagan administration in office, and the Republicans have not controlled both houses of Congress for a very long time. The Democrats have controlled them. And in – was it 1978? – Congress expanded the size of the federal judiciary. So they added, for example, 10 judges to the Court of Appeals for the Ninth Circuit. Those were basically all Carter appointees. So you have this situation where conservatives are looking over the battlefield and saying, “Well, Congress isn’t very helpful. The judiciary isn’t very helpful. We really like the Reagan administration a lot, and we think we stand a chance of doing better with the presidential elections than we do in the congressional, uh, elections.” So from that point of view, I think it completely makes sense why conservatives would have adopted a doctrine which gave more interpretive power to the executive branch as opposed to the judiciary in particular. There’s also something else I think in the background, which was a big question at the time we tend to sort of forget about now because everyone is on board with it, which is cost-benefit analysis. So at the time, there was a big question early on in the Reagan administration about whether the president could enforce cost-benefit analysis in the review, internal review process as part of an agency’s proposal of regulations. And it wasn’t clear because, of course, none of the statutes mentioned cost-benefit analysis. It was a sort of new thing, but it was thought at the time to be a conservative tool for reining in the administrative state. So if you wanted to give the best chances to cost-benefit analysis working its way in as an important part of the administrative process, you wanted to give the agencies controlled by the president some leeway in interpreting what exactly was permissible under the statute. Now the other side of that is, of course, things have completely changed. We now have an executive where, more often than not, the Democrats win the popular vote. We have what’s thought to be a fairly conservative judiciary because there have been a lot of, you know, conservative appointments. And we have a situation in Congress where Congress really doesn’t do anything. So if you’re sort of conservatives who have been looking over the field, I think, you know, between the legislature, the executive and the judiciary, the judiciary is going to be the most attractive option. So I think that’s part of it too. Now, I don’t think that’s necessarily right cause the judiciary in 30 years could be completely different than it is now. But I think that’s part of the thinking.

John Duffy: Well, I would say that it is a strange history of Chevron that it started out really being embraced by the D.C. Circuit and judges on the D.C. Circuit who were conservative, including then-Judge Scalia on the D.C. Circuit.

Risa Goluboff: And the D.C. Circuit being the circuit that hears a lot of administrative law cases, right?

John Duffy: Right. So at the Supreme Court, this case was considered a nothing case. It was a shorthanded court. There were only six justices and the most conservative justices were not sitting. So Justice Rehnquist and the only Reagan appointee then on the court, Sandra Day O’Connor, were not participating in the court. So there was only six justices. The opinion gets assigned to the most junior justice, who is John Paul Stevens. That’s usually thought like, you know, well, you give the simple, easy toss away cases to the most junior justice. He writes his opinion fairly quickly, seems to be, and nobody thought it was a big deal. I will say it is written as a kind of grand restatement of how courts should handle agencies. And I think the D.C. Circuit had some good legal basis to adopt, you know, a broad reading of the case and say this is a real watershed case. And it did, you know, certainly help agencies during the Reagan administration claim a lot of power. I think the counter revolution against Chevron, started perhaps with some, perhaps some scholars.

Risa Goluboff: Including you, yeah.

John Duffy: Yes, starting, you know, to say, what is Chevron? Where does it come from? What is its theoretical basis? And that led me to write an article that talked more generally about judge-made law in judicial review. And my article is fairly hostile to a lot of judge-made laws simply because I think the APA – it was passed in 1946 unanimously. That is an amazing fact. We should pay attention to it. And a lot of the judge-made law simply just doesn’t even consult with the APA. Some of that judge-made law has been – even at the time I wrote my article two decades ago – had been overturned. But Chevron was on my list of things that makes no sense and that is in deep conflict with the statute. I personally began to see the change in, you know, sort of conservative versus liberal views when I was at, of all places, a law clerk reunion for Justice Scalia. And I happened to get into a discussion about Chevron, of all things, with another law professor, ex-clerk of Justice Scalia’s, and his name is Larry Lessig. He’s a fairly well known pretty liberal law professor, and he was very pro-Chevron and I had just finished this article that, you know, I thought of everything, did a lot of research and I’d become very anti-Chevron. And lo and behold, Justice Scalia comes and sits down next to us. It’s after dinner and I just thought this is the most bizarre thing in the entire world that I am debating a legal issue with Larry Lessig and I have the anti-Scalia position and Justice Scalia comes and sits next to me. It just made me think that the universe has a very strange sense of humor. But nonetheless, it seemed to me like a watershed for my thinking that, you know, yes, if you’re really a textualist, Section 706, among other things are real deep stumbling blocks for Chevron. And eventually that’s going to be what’s going to go, but there may be liberal reasons to keep the judge-made law. And I think towards the end of his life, Justice Scalia was really rethinking this and began to describe Chevron as judge-made law, which, is not a compliment in his pantheon of things to say about doctrines.

Dan Ortiz: What did he say at the dinner, John?

John Duffy: He, he remained silent. I think he was entertained by two law clerks going toe to toe. I mean, where else can you find after-dinner conversation about administrative law? And you know, it was, it was very friendly. But it was, it was pointed. I mean, we were, having much more of a debate, you know, what about this? What about that? And I think he sat down and thought, you know, this is, this is what I signed up for as a justice. I hired people who are interested in administrative law and constitutional law, so of course they’re debating that.

Risa Goluboff: So he was kvelling with pride is what you’re saying.

John Duffy: I think he liked that his clerks became professors and tried to, you know, debate big issues. You know, I think the debate is still going on and maybe these two cases at the Supreme Court will put a period at the end of the debate.

Risa Goluboff: A few different developments over time have come up and I’m curious how much weight you would each give to them. But you know, one is changes in approaches to constitutional interpretation, right? So the increased dominance of textualism and different camps or views of what are the tools that we should be using and should it really be textualist or should you take into account these other tools, and the rise, really, of textualism. The second is the changes, Dan, you were articulating about different centers of power are and whether they’re relatively conservative or liberal and how that has shifted over time. And the third is something you referenced earlier, John, which was the growth of the administrative state, right? And so views about what is the appropriate size of the administrative state and for those who think it’s too large, how can it be reined in? And for those who like its power and size, you know, how does it get maintained? Those are three different kinds of changes over time and I wonder if you all have views on you know, are they all doing the work to shift this conversation to where we are today or is one more important or more dominant than the others?

Dan Ortiz: I tend to be a realist, so I think that politics is doing a lot of the work. John may disagree. I think textualism is really important too, but in a way which is a little bit interesting. I think most of the people who are arguing for repeal of Chevron are looking for a very clear textual commitment to delegation. It’s funny, that goes against, I think, some of their other political priors. So, for example, strong executive control. So, it’s very interesting in this area, in the last, like, five or six years, you know – John knows the cases much better than I do – the Supreme Court has reined in the appointments power, which is a way of sort of strengthening executive control over agencies. But at the same time, it now seems to be following this textualist move that would take power away from the executive. So, you know, there is that complication. One final thing is, Risa, you mentioned the rise of the administrative state and people were interested in reining it in. I think right now, yeah, writing off Chevron would mean that you have at least a marginally less regulatory state, but boy, all bets are off I think after 10 or 15 years. One of the things about Chevron is that it allows some flexibility. So the agency can say one thing under one administration and then say something else during another administration. After a court says something, that presumably remains the law. So there can’t be this back and forth. Now, some people, you know, hail that and say, ‘Well, this will increase reliance interest,’ et cetera, et cetera. Flip side of that is flexibility. You’ve lost a lot in political accountability.

Risa Goluboff: John?

John Duffy: So I’ll be the anti-realist, maybe it’s because I’m an academic and I’ve moved outside the beltway down here to UVA. So I’ve lost all my realism. I think the two things that are most important are first, the shift to textualism, both in constitutional law and in statutory interpretation. I think once you make that shift fully, Chevron looks very strange. It has no basis. The court doesn’t talk about a statutory basis. After years of looking at Chevron, relooking, rethinking Chevron, more and more people are beginning to realize it’s impossible to square with the APA. So if you’re going to be an originalist and you have to look at the original design of the APA, you really can’t be in favor of Chevron. So I think that’s a big thing. The third thing you mentioned, the size of the administrative state — Justice Scalia, who’s kind of a pivotal character in this whole story, he was not somebody who was extremely hostile to the mere size of the administrative state. He wrote the most recent, fairly ringing endorsement of a relatively forgiving, what’s called non-delegation doctrine that allows Congress to delegate a lot of power to administrative agencies. He taught administrative law, of course, both here and at the University of Chicago. He was a professor. I, I feel great teaching here because I feel like I’m a poor successor in interest to Justice Scalia, but he did teach administrative law at this university, but he wasn’t hostile to it in the way, I think, for example, his replacement Justice Gorsuch, is much more concerned about reeling in the whole size of the administrative state. And I think that’s a huge change. Justice Gorsuch is similar to Justice Scalia in many ways. In some ways he’s more Justice Scalia than Justice Scalia because on the issue of the amount of delegation to agencies, I think that he would definitely reel back. And in opinions, he’s argued for reigning in the non-delegation doctrine, sort of limiting how much power agencies can get from Congress. Well, if that’s your opinion, you really don’t like the Chevron doctrine because you say, like, “Well this is the judiciary putting the thumb on the scale of agency power. At the very least, we shouldn’t be doing that.”

Risa Goluboff: So let’s talk about these two pending cases. If you could write the opinion in these two pending cases, what would the opinion say? John, you want to start?

John Duffy: Sure. First of all, I would get rid of the entire Chevron framework. I would explain how Chevron was correctly decided because in that very case, the agency had a very broad delegation of power, which was pretty explicit. There was one directly in the statute. And the agency, which by the way, was headed by – this is a little trivia – Justice Gorsuch’s mother, Ann Gorsuch, who actually signed the order that was being reviewed in the Chevron case.

Risa Goluboff: Wow.

John Duffy: Yeah, I know. What a wow moment.

Risa Goluboff: Yeah.

John Duffy: Um, small town Washington is. She did everything perfectly right. She actually said that the concept of stationary source was not defined in the statute and that Congress had left it there for the agency to fill with its rulemaking power, very explicit delegation. So that’s the way to talk about Chevron, to talk about the amount of delegated power. Now, if you think that’s too much of a delegation, well, that’s a different issue. But I think even Justice Gorsuch very clearly thinks that agencies can fill in the details about whether a source should be, you know, each smokestack or a plant or contiguous plants or, or some other metric like that. That’s very much a down-in-the-weeds kind of thing that Congress can delegate to an agency. So that’s the first thing that I would do. And then on these cases – these cases are fantastic cases, poster children for why something’s wrong about Chevron, because if you look at the relevant statute here to say, how much delegated power does this agency have, the answer is very surprisingly small. The statute is very simple once you strip away all the sort of section numbers, you sort of boil them down to looking at the first, second, third and fourth sections, not that big. Those cases are Loper Bright and Relentless. Those are names of boats that are subject to these fishing regulations. That’s why they have these names. So let’s take, you know, the Relentless ship. It’s subject to these rules to prevent overfishing. And Congress passed a whole statute about this. And the very first section has an A and a B. That’s all it has. First section, A and B. A has a bunch of principles about how to prevent overfishing and good fishery management. And B then has an extraordinary section about how much power the secretary of commerce has who’s lording over this statute. Originally, it says, the secretary just has power to issue guidelines. Well, guidelines is a buzzword in administrative law. It means you don’t have a rulemaking power. It’s much less power than a rulemaking power. But Congress wasn’t even happy with that. Congress went back, by amendment, and added a parenthetical after the word guidelines. And that parenthetical said that – I’m quoting now – “which shall not have the force and effect of law,” which is radically different. My eyes fell out of my head practically when I read this, because this was written in 1983 and being able to speak with the force and effect of law later, 20 years later, became a buzzword in the Chevron jurisprudence that, you know, it’s a prerequisite. It’s part of Chevron step zero, that unless an agency has the power to speak with the force and effect of law, it doesn’t get Chevron deference. So I thought it amazing that the statute starts out with an extremely limited delegation to the secretary of commerce. And then the subsequent sections don’t really cut back on that at all. There’s some regional fishery management councils that get to set, you know, catch limits and other things like that. And then the secretary can only overturn their rules that they write if they’re inconsistent with law. So the secretary really has very little delegated power in this statute. And I think that the court should talk about delegation, should talk about the limits of delegation here, and say that this agency simply can’t do the kind of dramatic regulation that it wanted to do here. And what it wanted to do here was say, not only did ships have to carry around federal observers to make sure that they stayed within their catch limits, they had to compensate those federal observers. That’s something that’s just not in the statute. The statute doesn’t really have much to say that can’t be in the regs, but it’s something that seems like a real stretch, given that the delegation of power is just to these regional fishery management councils that are, you know, trying to figure out how many fish you can catch, not who should pay a federal observer to be on the boat?

Dan Ortiz: I largely agree with John, the way he sees the case, but I think we differ on the result that he sees here for Chevron or the implications on Chevron. For the reasons that John mentioned, this is, I think, a bad case to look at Chevron, because as he said, the agency doesn’t have lawmaking power. That’s really clear. So even under Chevron, this is arguably a Chevron step one problem. The agency is just doing something that Congress has actually directly spoken about twice, first giving the power only to issue guidelines and then saying that those guidelines shall not have the force of law, just underlining it. And so it’s certainly possible, I don’t think though, you know, either of the parties are arguing it this way, the court could use this as a way to refine Chevron, not to throw Chevron out the window completely, but to spend some more time with how lower courts should read statutes, what kind of indications of delegation there have to be. And at that point, I think the question’s going to come down to, do you just look at clear textual commands. There’s one here. This is an easy case. Or can you also look at other tools of statutory construction, particularly purposivism to try to decide that. So, you know, it’s possible, although I think unlikely, that the court actually wouldn’t even get to the point of rejecting Chevron. It certainly doesn’t have to. But I think people see the stakes as being so high on this case – some of the justices as well – that that’s an unlikely outcome.

John Duffy: Dan said that my points about the statute in this case make this a bad case. I think this makes it a great case to throw Chevron over the boat, over the side.

Risa Goluboff: Pun intended.

John Duffy: Pun intended. It’s a great case because it shows what’s happening in the lower courts. The lower courts are getting so distracted by the Chevron framework that they’re not spending enough time reading each statute and saying, “How much power did Congress want this agency to have?” Instead, they have to go through this elaborate judge-made framework of Chevron in its steps and everything else. And they miss the boat – again, pun intended – they miss the boat on saying, “Let’s read this statute and see if this statute is a very broad delegation of power,” like for example, the extreme delegations of power that the FCC has to even override clear statutory provisions, a sort of medium delegation of power like the EPA had in the Chevron case itself, which had a very broad rulemaking power or a very restricted power like the Patent Office or the EEOC has where the agency really doesn’t get a lot of power to supplement the existing statutory law. I think this is a great case because the court should say the real focus in the lower court should have been on the amount of power that this agency has, and if you focus on the amount of power, it’s an easy case.

Dan Ortiz: I think that’s right. But it makes it an easy step one Chevron case, not an easy throw-Chevron-out-the-window case.

John Duffy: Aww. Get rid of Chevron because it’s showing the damage that Chevron is doing. It is amazingly destructive in the lower courts. And I say this having occasionally consulted on cases. If you’re walking into a courtroom and not in front of the Supreme Court that knows all the sort of ins and outs of Chevron, but if you walk into the average district judge, they think, “I know Chevron. Chevron is what the agency says is almost, you know, gospel, unless you can point to something very clear.” And that’s just incredibly destructive. It’s not a thumb on the scale in favor of the agency. It’s a giant 10-pound weight on the scale of justice in favor of the agency.

Dan Ortiz: Well, we don’t disagree that the lower courts misunderstand Chevron at all, John. The question is whether you throw the baby out with the bathwater.

John Duffy: Well, the baby’s bad anyway. So it was never right from the beginning. Chevron’s just bad legal doctrine.

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Risa Goluboff: It has been such a pleasure to have you both on this podcast and talk about this incredibly important issue and you’re both just learned and passionate and it’s just been great. So thank you for being here.

Dan Ortiz: Thank you.

John Duffy: Thank you, Risa.

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Risa Goluboff: That wraps up this episode of Common Law. If you want to find out more about John Duffy and Dan Ortiz, visit our website, Common Law Podcast dot com. There, you’ll also find all of our previous episodes. We hope you’ll join us next time to hear another “free exchange” and more explorations of how law shapes our lives. I’m Risa Goluboff. Thanks for listening.

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Credits: Do you enjoy Common Law? If so, please leave us a review on Apple Podcasts, Stitcher, or wherever you listen to the show. That helps other listeners find us. Common Law is a production of the University of Virginia School of Law and is produced by Emily Richardson-Lorente and Mary Wood.

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