Last week the U.S. House of Representatives passed the Separation of Power Restoration Act, with even one Democrat voting in favor.* If enacted, the legislation would attempt to get rid of Chevron and Auer deference by amending the Administrative Procedure Act to instruct courts to “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.” As I’ve explained elsewhere, this legislation is unlikely to become law anytime soon—if ever. But it has sparked some interesting conversations among administrative law professors and practitioners.
Aside from debates over the wisdom of getting rid of Chevron or Auer deference, some question whether the legislation would actually accomplish its objectives or if courts would just adopt deference under a new name. Others further question whether deference doctrines actually do any work now in constraining courts and giving agencies more flexibility. The usual evidence for these doubts centers on the pathbreaking empirical study by Bill Eskridge and Lauren Baer of deference doctrines at the Supreme Court, in which they found that the Supreme Court has applied the doctrines inconsistently over the years.
I have long thought that looking at the Supreme Court to conclude that deference doctrines do not matter as a general matter is misplaced. (To be sure, that’s not what Eskridge and Baer were attempting to show, and their study is even more valuable, in my opinion, for the other countless findings they uncover.) First, as I have explored empirically elsewhere, Chevron deference sure seems to matter to the federal agency officials that draft regulations. The rule drafters surveyed think aboutChevron often when interpreting statutes and drafting rules; they think about subsequent judicial review; they believe the rule is more likely to survive judicial review under Chevron than underSkidmore deference or de novo review; and, to a somewhat lesser extent, they indicated that their agency is more aggressive in its interpretive efforts if it believes the reviewing court will applyChevron deference (as opposed to Skidmore deference or de novo review).
Second, and perhaps more importantly, when assessing the impact of deference doctrines on judicial behavior, it seems like the circuit courts are the better focus. After all, the federal courts of appeals review the vast majority of agency statutory interpretations, and they do so knowing that further review in the Supreme Court is possible. Over the last three years, Kent Barnett and I have been coding every published circuit court decision from 2003 through 2013 that refers to Chevron deference—for a total of more than 1,300 decisions (and more than 1,500 total agency statutory interpretations under review). Last week we posted an early draft of the first, mainly descriptive paper based on this dataset: Chevron in the Circuit Courts.
There are so many fascinating findings in this paper concerning the scope of Chevron generally as well as differences by agency, agency procedure used, circuit, and subject matter. For fun, we also created rankings by agency, circuit, and subject matter! I tweeted out a string of figures last week that summarize some of the key findings, but adlaw geeks should definitely check out the full paper here. Although this paper just presents raw numbers (we will explore some of the key findings with more sophisticated statistical analysis in subsequent work), it’s hard to ignore the numbers that suggest thatChevron deference sure seems to matter in the circuit courts. In particular, there is a difference of nearly twenty-five percentage points in agency-win rates when courts decide to apply the Chevrondeference framework than when they do not (at least in the cases reviewed, where Chevron was expressly referenced in the published opinion).
As detailed in the paper, there are methodological limitations that would counsel against reading too much into the findings. In all events, the draft paper is available on SSRN here. And here is the abstract:
This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevron deference—the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1561 agency interpretations the circuit courts reviewed from 2003 through 2013, we found that the circuit courts overall upheld 71% of interpretations and applied Chevrondeference 75% of the time. But there was nearly a twenty-five percentage-point difference in agency-win rates when the circuit courts applied Chevron deference than when they did not. Among many other things, our study reveals important differences across circuits, agencies, agency formats, and subject matters as to judicial review of agency statutory interpretations—as our rankings based on these variables illustrate.
Based on prior empirical studies of judicial deference at the Supreme Court, however, our findings suggest that there may be a Chevron Supreme and a Chevron Regular: WhereasChevron may not have much of an effect on agency outcomes at the Supreme Court, Chevrondeference seems to matter in the circuit courts. That there is a Chevron Supreme and a ChevronRegular may suggest that, in Chevron, the Supreme Court has an effective tool to supervise lower courts’ review of agency statutory interpretations.
This is an early draft of the paper, so comments are particularly welcome.
* I was particularly thrilled to see that one Democrat voted in favor because the policy question on my 1L leg-reg final this year asked the student to advise a Democratic Member of Congress whose constituency was quite libertarian on whether she should support this legislation. Of the 63 total essays, nine recommended supporting the new legislation, with one additional essay just presenting the pros and cons without providing a bottom-line recommendation. The rest (53 of 63) all recommended that she oppose it.
This post is part of the Administrative Law Bridge Series, which highlights scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.