In a landmark 1984 ruling, the Supreme Court gave explicit
instructions to federal courts on how to interpret laws administered by
federal agencies. Many who applauded the decision at the time hoped that
the ruling would help keep judges from injecting their own beliefs into the
affairs of administrative agencies.
The ruling, made in a case entitled Chevron U.S.A. v.
Natural Resources Defense Council, Inc., held that unless Congress has
clearly addressed a particular issue, an administrative agency's
interpretation of law should be upheld so long that that interpretation is
within reason and not clearly contrary to the governing statute. In its
decision, the court expressed hope that federal courts would
"defer" to the judgment of administrative agencies rather than
impose their own. But, nearly a generation later, has the dream of def
Professor Cass Sunstein, sometimes
identified with left-of-center causes, and Professor Thomas Miles, an
economist as well as a lawyer, reach a thoroughly non-partisan conclusion:
Justices and judges of each party seem to let politics creep into their
decision-making at a roughly equal rate. While the practice is most
prevalent among federal appellate courts, it also shows up at the Supreme
Court level, as witnessed in the recent Gonzalez v. Oregon case.
The authors write that justices identified as
"conservative" and Republican appellate judges are more likely to
defer to policies made under Republican administrations; justices
identified as "liberal" and Democratic appellate judges are more
likely to defer to agency policies made under Democratic administrations.
(The professors assign "liberal" and "conservative"
labels to Supreme Court justices in accordance with common perceptions: For
instance, Justices Scalia and Thomas are deemed conservative; Justices Breyer
and Ginsburg are deemed liberal. Appellate judges are labeled Democrat or
Republican based upon the party affiliation of the president who appointed
them.)
The jurists, find the professors, also are swayed by the
political leanings of the groups challenging agency actions. In other
words, when a labor or environmental group -- groups defending interests
traditionally identified with the left -- challenges an agency rule or
action, liberal justices and Democratic judges are less likely to defer and
more likely to uphold the challenge. When, for instance, a pro-business
group contests an agency ruling, conservative justices and Republican
judges are more likely to defer their deference for another day.
What does all this say about the efficacy of Chevron itself,
which for years has been known as the seminal decision of administrative
law?
On the one hand, the professors' study, which examined
Supreme Court and circuit court issued over a 15-year period, does conclude
that the Chevron doctrine "has had a significant effect" and has
resulted in a "significant dampening of ideological disagreement among
the justices."
But the study also shows that Chevron hasn't taken politics
out of the equation entirely. While Chevron has had its chief intended
effect -- causing justices and judges to accept the expertise and political
judgments of administrative agencies -- "the application of the
Chevron framework is greatly affected by the judges' own convictions,"
the professors say. In other words, despite Chevron's effect, there are
still many cases in which justices and judges pay lip service to Chevron,
but conclude that the agency action is far enough afield
that deference is not required.
The differing levels of deference to agencies like the
Environmental Protection Agency, the Federal Communications Commission, and
the National Labor Relations Board can be seen in any number of recent
Supreme Court rulings. In Gonzales v. Oregon,
for instance, the court's recent ruling on the Oregon assisted suicide law, the Court refused to uphold an interpretive rule
issued by the U.S. Attorney General declaring that the federal Controlled
Substances Act (CSA) prohibited prescribing regulated drugs for use in
physician-assisted suicide.
Both the majority and dissenting opinions contained
extensive discussions of Chevron. Writing for a six-justice majority,
Justice Kennedy, a moderate, held that deference to the attorney general
was not warranted because the attorney general was not exercising authority
delegated to him by Congress. That is, it was not for him to determine, at
least not in this context, what the phrase "legitimate medical
purpose" meant in construing the CSA.
In his dissent, the conservative Justice Scalia protested
that Chevron should have ruled the day. He contended that Congress's delegation
of authority was "implicit rather than explicit" and the Court
was wrong to "substitute its own construction of a statutory provision
for a reasonable interpretation made by the administrator of an
agency." Justice Scalia called the insistence on explicit delegation
"a fossil of our pre-Chevron era." According to Messrs. Sunstein and Miles, though, such fossils are easy to
unearth.
Among the professors' other findings:
• The Supreme Court justices
most often identified as conservative during the time period involved in
the study -- Rehnquist, Scalia and Thomas -- defer to agency rulings 20%
less often when the agency ruling was promulgated under President Clinton's
watch than when the ruling was promulgated during either Bush
administration. The more liberal justices -- Stevens, Souter,
Ginsburg, and Breyer -- defer 14% more often to Clinton administration rules than to Bush
administration rules.
• Justice Stevens, a liberal,
and former Chief Justice Rehnquist, a conservative, have nearly identical
deference rates of just over 70%, the same as moderate or swing justices
Kennedy and O'Connor. (Stevens, incidentally, wrote the decision in
Chevron.)
• Individually, Justice Breyer, whom Sunstein and Miles call the court's "most vocal
critic of a strong reading of Chevron," is, in practice, the most
deferential justice. Meanwhile Justice Scalia, termed "the Court's
most vocal Chevron enthusiast," is the least deferential.
Incidentally, both Breyer and Scalia were leading administrative law
scholars before becoming federal appellate judges.
One might expect the ideological differences to be greatest
on the Supreme Court, where the cases are theoretically the most difficult.
In fact, say the professors, the differences are more pronounced among
federal appeals judges.
And the rate of deference is even lower when a three-judge
appellate panel is made up of all Democrats or all Republicans. When the
panels are mixed, however, there is no real difference in the deference
shown.
Write to lawblog@wsj.com5
Dan Ackman is a lawyer and senior writer at the
Institute for Judicial Studies, a think tank that examines the judiciary.
