Over at Law and Liberty: Philip Hamburger’s Chevron Bias, Illustrated by Statistics

by Chris Walker — Monday, Apr. 16, 2018@chris_j_walker

Over at the Law and Liberty blog earlier this month I did a quick post, provocatively titled The Federalist Society’s Chevron Deference Dilemma, on my new paper with Kent Barnett and Christina Boyd. I knew suggesting that Chevron deference *may* have some benefits — in particular, reducing partisanship in judicial decisionmaking — was not likely to be well received by many Law and Liberty readers.

Last week I was thrilled to see a passionate response from Philip Hamburger, the author of Is Administrative Law Unlawful? Here are a few of the my favorite parts of the response:

Rather than reveal diminished politicization, Walker’s numbers provide strong evidence of diminished judicial independence and even of institutionalized judicial bias. That is, his research actually proves just how much judicial bias Chevron creates in favor of the government—not how much judicial bias it reduces.

The Caledonian Chieftain Calogacus famously complained about the Romans that “they make a desert and call it peace.” More mildly, one might protest that Chevron interferes with independent judicial judgment, and Walker calls it nonpartisanship.

. . .

Walker defends Chevron by presenting false alternatives—by suggesting a choice between judicial activism and judicial restraint. There are some (including me), he says, who “encourage courts to actively engage in checking the actions of the political branches,” and some (including Adrian Vermeule) who argue that “because federal courts are not democratically accountable, they should exercise judicial restraint, embrace the ‘passive virtues’ when possible, and otherwise adopt a minimalist and deferential approach to judicial review of actions by the political branches.”

Really?

How accurate is it to associate me and the other critics of Chevron with judicial activism? Walker himself seems to recognize that he may be going too far, for he says that we want the courts “actively” to engage in checking the political branches—thus hinting at judicial activism without actually using the word.

In fact, my view (which is amply on record) is that judges have a duty of judgment. To be precise, they have a duty to exercise their own independent judgment in accord with the law of the land. This is the core of their very office. Far from anything remotely resembling activism, it is a matter of judgment or understanding. It is what Justice Marshall alluded to when, in Marbury v. Madison (1803), he said: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.”

. . .

It is sad when apologists for administrative power misstate the positions of those with whom they disagree. And Walker is not as egregious in this as some of his fellow travelers. But it is necessary to state very bluntly that Americans do not face a simplistic choice between judicial activism and judicial restraint.

Definitely go over and read Hamburger’s full response here (and stay for the comments!). My original post is here, and the underlying paper (forthcoming in the Vanderbilt Law Review) is here.

I hope to respond at some point, but with the end of the semester quickly approaching (and a few publication deadliness this month), I fear I might not have the bandwidth. FWIW, Evan Bernick’s thread on Twitter nicely captures the thrust of any response I’d offer:

 

The meme-thread response by Sheldon Gilbert of the Institute for Justice was also fun:

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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