Chevron and Political Accountability

by Chris Walker — Sunday, Mar. 11, 2018@chris_j_walker

Kent Barnett and I recruited political scientist Christina Boyd as a coauthor to mine our Chevron in the circuit courts dataset in a more sophisticated manner. We just posted to SSRN a draft of our latest article from this dataset—Administrative Law’s Political Dynamics—which is forthcoming in the Vanderbilt Law Review.

I’ll be blogging more about this paper in the near future, as I think it adds an important perspective to the current debates on the future of Chevron deference. But for now here’s a summary of the paper, from the abstract:

Over 30 years ago, the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court’s desire to temper administrative law’s political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congress charged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have documented empirically how politics influence circuit-court review of agency statutory interpretations in a post-Chevron world. Among other things, they have reported whistleblower or panel effects, in that ideologically diverse panels are less likely to be influenced by their partisan priors than ideologically uniform panels.

Leveraging the most comprehensive dataset to date on Chevron deference in the circuit courts (more than 1,600 cases over 11 years), this Article explores administrative law’s political dynamics. Contrary to prior, more limited studies, we find that legal doctrine (i.e., Chevron deference) has a powerful constraining effect on partisanship in judicial decisionmaking. To be sure, we still find some statistically significant results as to partisan influence. But the overall picture provides compelling evidence that the Chevron Court’s objective to reduce partisan judicial decisionmaking has been quite effective. Also contrary to prior studies, we find no statistically significant whistleblower or panel effects. These findings have important implications for the current debate over the future of Chevron deference. Our findings identify a significant, overlooked cost of eliminating or narrowing Chevron deference: such reform could result in partisanship playing a larger role in judicial review of agency statutory interpretations.

You can download the paper here. It won’t be published until the fall, so there’s plenty of time for us to incorporate feedback. (There’s also a fun part near the end of the paper on how individual judges fare in applying Chevron deference, perhaps inspired in part by Judge Kethledge’s essay on how in nearly ten years on the Sixth Circuit he’s never found a statute ambiguous at Chevron step one.)

I should note that this paper builds on our prior paper—The Politics of Invoking Chevron Deference—which is forthcoming later this year in the Journal of Empirical Legal Studies. A draft of that paper can be downloaded here. Jonathan Adler kindly featured that paper over at the Volokh Conspiracy last year, and our latest paper answers some of the questions left open in that paper.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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