It’s been called the Voldemort of administrative law. The phantom, lurking spirit of the executive branch of government that is ever present but, as of recently, rarely uttered by the high court.

‘Chevron deference,’ the legal doctrine that gives federal agencies the authority to interpret vague statutes and carry them out as they see reasonable, has been for 40 years the most-cited administrative law decision, said Andrew Blum, a litigator for Miller Canfield.

“Recently, it’s not been cited as often,” Blum said in an interview. “That’s why they’ve compared it to the Lord Voldemort of administrative law – the decision that shall not be named.”

The doctrine is applied more frequently by lower circuits courts and less by the Supreme Court, according to a Yale University regulatory analysis, though that silence may break in the next term. The U.S. high court declared at the end of April that it will take up Loper Bright Enterprises v. Raimondo, a case dealing with the fundamental question of who is best situated to make the rules: agencies, Congress or the courts. Legal experts with whom Federal Times spoke said outcomes range from overturning Chevron altogether to narrowing it to leaving it intact.

Overturning Chevron would deal a blow to the administrative state, which critics and conservatives have long decried as too unwieldy. Polls indicate public trust in the executive branch is barely above record lows from the Watergate years, and the number of regulations has grown as agencies’ missions have become more complex.

“From agencies’ perspective, if [Chevron’s] overruled, they’re losing some power to the judicial branch,” Blum said. “To the extent we’re looking at is as a balance of power situation, there is some loss of power from the agencies to the courts through that process.”

The Chevron doctrine is a legacy of Justice John Paul Stevens that was also supported by Antonin Scalia. Chevron USA Inc. v. Natural Resources Defense Council is what started it all in 1984. But a different case with a similar question is before the Supreme Court now.

The doctrine acknowledges that agencies have subject-matter expertise in determining how to carry out legislation. Because Congress cannot include in a law every possible outcome or circumstance (lest every law be the length of a Harry Potter novel), Chevron deference allows the courts to defer to agency’s interpretations of vague statutes, provided that they’re reasonable.

“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” Stevens wrote in his opinion.

Since then, Chevron has been operating in the background of government and has been cited in more than 80,000 sources on Westlaw as of 2018.

“If you look at it at at Chevron in its original nature, it went across the political spectrum,” Blum said. “There were six justices that that voted for Chevron, but it’s taken on a political tinge over time. But originally, it didn’t have that.”

Chevron came during an era of attempted deregulation by then-President Ronald Reagan, who sought to “reduce regulatory burdens, increase agency accountability and provide for presidential intervention into agency decision making,” per executive order in 1981.

The other check on power was, and is, the judiciary. Chevron deference mediates when conflicts between the two arise.

Conservative legal academy

Mike Showalter, a litigator for Arentfox Schiff LLP, said the principle can be tricky to apply, and the high court has been reluctant to grant deference. Instead of invoking or citing the Chevron doctrine, the Supreme Court has used routine statutory analysis to determine whether an agency overstepped, perhaps hinting at an inclination by the conservative majority to allow Chevron to fade from use.

“‘Why now?’ is is a little bit of a product of who’s on the Supreme Court,” Showalter said. “The conservative legal academy has written about problems with [Chevron deference] for a long time. This is not a new thing. This is just a thing where either they found the right facts, or they realized there’s a whole lot of confusion.”

Some critics may also feel that the original two policy pillars stated in Chevron have been neglected, Blum said. Chevron was built on the idea that independent federal agencies aren’t making political choices, and that they stay true to the statutory text as much as possible to produce the best result, even if there are ambiguities, Blum said. The second is that agencies are beholden to the chief executive, who is accountable to the public via elections.

“Over time, some folks have felt that those policy reasons had been undermined,” he said. “As far as technical, apolitical expertise, [some say] you have the interpretations swinging from one extreme of the pendulum to the other as administrations change ... There’s also the perception by some that agencies began to push the envelope in a way they hadn’t pre-Chevron.”

Justices Brett Kavanaugh, Neil Gorsuch and Clarence Thomas have in the past criticized the doctrine. There’s also speculation that Chief Justice John Roberts and Justice Samuel Alito may, too, seek limit its application based on past statements, according to analysis by the Congressional Research Service.

“While any prediction of the court’s decisions would be premature at this time, the fact that the justices used oral argument to explore statutory meaning, absent any discussion of Chevron deference, may suggest that the court will continue its recent tendency to find clear meaning in statutes and resolve cases at chevron’s first step, rather than deferring to an agency’s interpretation,” according to CRS.

Courts are, after all, incremental institutions, Showalter said.

If Chevron is overturned, agencies will eventually find stability, he said, though interest groups may seek to destabilize decisions that were made with Chevron deference and subject them to the regulatory process. And in the interim, Showalter said agencies may be looking to keep their policies defensible.

Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.

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