Slate is running a series of monthly dialogues between two of the nation’s most esteemed jurists, Richard A. Posner and Jed S. Rakoff. These conversations will be moderated by Joel Cohen, author of the book Blindfolds Off: Judges on How They Decide. The subject of their previous conversation was whether judges should rely on the law or their own common sense. This month’s conversation is about Chevron deference. (Note: Judge Posner unexpectedly resigned his seat on the 7th U.S. Circuit Court of Appeals last month.)
Joel Cohen: Administrative agencies are tasked with interpreting statutes that regulate immigration, pollution, employment, and pharmaceuticals, just to name a few extremely broad areas. The Supreme Court, roundly and unanimously (albeit with three justices not voting), decided in 1984’s Chevron USA v. Natural Resources Defense Council that courts must defer to the relevant government agency’s interpretation of a statute, unless that interpretation is unreasonable. This policy, basically a “conservative” philosophy of judging, is commonly called “Chevron deference.”
We can probably agree that administrative agencies typically echo the views of an incumbent administration. Even so, doesn’t it make sense that agency personnel—who typically have expertise regarding the agency’s agenda—and not judges and justices in their ivory towers—who have no particular expertise in administering or enforcing these statutes—are the ones who decide how to enforce a statute? Do we really want judges who have never driven a truck and know nothing much about truck driving making decisions about truck driving safety?
Jed Rakoff: I have never understood the logic of Chevron deference. When Congress passes a law, it possesses no greater “expertise” than a court, but it doesn’t need to, because what it is enacting is basic policy. Prior to the Chevron decision, interpreting what the law means, i.e., what Congress intended and how it fits within the overall fabric of the law, had always been the exclusive prerogative of the courts, and I know of nothing in the Constitution that delegates that responsibility to the executive branch, let alone to the subset of the executive known as administrative agencies. To be sure, Congress itself recognizes that there are areas that call for the exercise of expertise, and to that end it has delegated certain rule-making powers to the relevant agencies. But such administrative rules and regulations must still comport with the words and purposes of those statutes pursuant to which the rules and regulations are promulgated and whether they do so should be decided by a neutral arbiter, namely, the courts.
I do not mean to demean in any way the able public servants who staff our federal administrative agencies, many of whom develop a genuine expertise in complex and technical matters (although, at the higher level of such agencies, political and ideological agendas are often prominent). But the very fact that we live in an “administrative state” means that the same kind of checks and balances set forth in the Constitution’s allocations of responsibility among the three branches of government must be applied to administrative agencies, lest we find ourselves governed by authoritarian bureaucrats disguised as “experts.”
Finally, Joel, I should add, in light of your preface above, that I (and I suspect many other judges) have driven a truck. And our courthouses are not made of ivory but of very solid concrete.
Richard Posner: The administrative agencies are buffeted by Congress and the president and high officials in the White House. The judges are more independent and that is an argument, which I find persuasive, for giving them review authority over the agencies. We see the importance of this in immigration cases, where the performance of the immigration court and
Board of Immigration Appeals is frequently appalling, and likewise in Social Security disability cases, where the Social Security administrative law judges frequently do a bad job. It would be a disaster to eliminate judicial review in immigration and Social Security disability cases, and I imagine likewise in the cases decided by other federal administrative agencies.
Cohen: Judge Posner, of course, judges are more independent and better equipped than the federal agencies to steer clear of the sometimes partisan winds that blow from the White House and Congress. Still—perhaps I’m being a devil’s advocate here—it is in fact the agencies’ role to execute and enforce the laws. Accordingly, many would argue that, in rejecting the mandate of the Chevron decision, you are effectively urging the courts to basically hijack the agencies’ role.
Posner: No, you’re wrong. You say, “It is in fact the agencies’ role to execute and enforce the laws.” Yes, and by the same token it is the role of a federal district judge to execute and enforce the laws. Yet all the district judges’ decisions are reviewable by courts of appeals, which sometimes are reviewed in turn by the Supreme Court. Similarly, agency decisions are reviewed by courts. What’s the difference?
Cohen: Judge Rakoff, the Posner view, stated here, is that it is the federal courts’ role to execute and enforce the laws. Is that the way you see it?
Rakoff: Joel, I think you are missing Judge Posner’s point, which is that federal agencies are not entitled to any more, or less, deference than a higher court would give to a lower court. A regulatory agency, though technically a branch of the executive, in practice exercises not just executive but also legislative (rule-making) and even judicial (administrative law judge) powers.
If even a federal district court, whose powers are much more purely focused on interpreting the law (as well as applying and enforcing it) is subject to having its interpretations of law totally disregarded by a federal appellate court, which is charged with interpreting the law “de novo” (i.e., without any special deference to a lower court’s interpretation), why should a regulatory agency be given any greater deference in determining what the law means?
Cohen: I guess this is what one might call a double bench-slap. Except, of course, the Supreme Court’s Chevron decision remains in force.
