Seemingly functioning parallel to other legal sectors, administrative law differs in the sheer magnitude of legal doctrine it entails. This includes, but is not limited to, the laws governing administrative agencies, court precedent, and the substantive rules that these agencies make. Administrative law has important implications in many issues including immigration and environmental protection due to the heightened role that administrative agencies— like the Environmental Protection Agency (EPA) and the Department of Homeland Security (DHS) — play. In order to better understand administrative law, it is crucial to discuss one of the most contentious topics among legal scholars in this sector: Chevron Deference.
Chevron Deference is a legal principle derived from the Supreme Court’s unanimous decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council. According to Cornell Law School’s Wex Legal Dictionary, Chevron Deference refers to judicial deference given to an executive agency’s interpretation of an ambiguous or unclear Congressional statute. This occurs when Congress passes a law that does not strictly define how it should be executed. This gives free range to the relevant administrative agency to draft a rule that directs the enforcement of the law, insofar as it falls within the rulemaking standards set by the Administrative Procedure Act (APA). Then, when a court is asked to review the legality of this rule, the court defers to (or upholds) the agency’s interpretation and makes their ruling based on that. It should be noted that in order for an administrative agency to receive deference it must meet two standards— as articulated in Justice Stevens’ majority opinion— that are meant to protect from administrative overstepping: First, the Congressional Act must be ‘intentionally’ ambiguous; second, the administrative agency must’ve made a ‘reasonable’ interpretation of the law. Any executive agency rule that does not meet both prongs of this test do not get deference.
Experts on administrative law stress that, unlike other highly controversial legal topics, the traditional liberal-conservative divide is not the line that distinguishes whether or not a jurist supports Chevron Deference. Instead, as Professor Gillian Metzger of the Columbia Law School suggests, the divide is based more on a judge’s personal notions on how the Constitution articulates the specific powers of the three branches of Government.
The most important argument made about the possible detriments that Chevron Deference poses to the government revolve around the nondelegation principle. This doctrine is based on Article 1, Section 1 of the United States’ Constitution that states: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Essentially, the nondelegation doctrine states that Congress cannot delegate its legislative power to other entities. This principle was codified in the New Deal era Supreme Court case A.L.A Schechter Poultry Corp. v. United States, where the court ruled that “Congress is not permitted to abdicate or transfer to others the essential legislative functions with which it is thus vested.” Opponents to Chevron Deference argue that it is unconstitutional since they see excessive executive rulemaking as a violation of the nondelegation doctrine. They draw the distinction that some rulemaking is necessary to ensure that administrative agencies have clear policies on how to enact certain pieces of legislation. However, as Northwestern Law School’s Professor Thomas Merrill suggests, the idea that Congress can intentionally pass vague laws that leave it up to the executive branch to form more stringent regulations itself goes against the nondelegation doctrine and violates the separation of powers that is ensured in the Constitution.
Opponents also discuss how Chevron Deference undermines judicial powers. As Chief Justice Marshall’s ruling in Marbury v. Madison states, it is “emphatically the duty of the Judicial Department to say what the law is.” Professor Philip Hamburger from the Columbia Law School argues that when deciding cases involving Chevron Deference, judges are prevented from interpreting the law and are forced to defer to the interpretation of the agency. This means that judges must base their ruling solely on what the executive agency’s interpretation is. Professor Hamburger thus refers to Chevron Deference as “Chevron Bias”, because judges are biased toward ruling for the executive agency whose interpretation they have deferred to. He likens this to “requiring a judge in a criminal prosecution to favor the interpretation of law put forward by the attorney general,” which he says violates the Fifth Amendment’s guarantee to fair judging.
Supporters of Chevron Deference disagree with both points made by their opponents. In regards to the nondelegation doctrine, proponents point to the fact that executive rulemaking was upheld in the Supreme Court’s 1928 decision in J.W. Hampton, Jr. v. United States, where the court held that “Congress can give agencies the ability to regulate only when they give the agencies an ‘intelligible principle’ on which to base their regulations.” Furthermore, proponents argue that since the court has remained relatively silent on the nondelegation issue— evident in the fact that not a single ruling has discussed it since Schechter in 1935— they implicitly agree with executive rulemaking.
Proponents disregard the argument about judicial power altogether. According to Professor Metzger, in cases regarding Chevron Deference, judges don’t lose the power to determine what the law is. Instead, their power just shifts to adjudicating whether or not the agency’s interpretation of the law fits within the bounds set by Congress. She further argues that this kind of deference to executive agencies is not unprecedented as there are plenty of instances where judges have done so throughout history. She also refutes the point that there is any sort of bias towards the executive agency, since the court is simply adhering to Congress’ wishes when they defer to the agency’s interpretation.
Although the debate around Chevron Deference still persists, courts have slowly veered away from blanket deference to executive agencies by slowly adding exceptions to the rule. This was seen in the 2019 case Smith v. Berryhill, where the court decided that Chevron deference does not apply to the scope of judicial review. The court has also completely disregarded deference to an executive agency’s interpretation of immigration law in the 2018 case Pereira v. Sessions. These two recent rulings signify a substantial change in terms of Chevron’s standing, with Pereira even hinting at the possibility that the court might reconsider its position on deference to executive agencies.