News and Commentary

HAMILTON: Since When Did The Left Start Advocating Against Chevron Deference?

It is always interesting when the Left starts making conservative arguments.

I will give a couple of examples from the past year. Following Donald Trump’s election, the same voices that championed Barack Obama’s encroachment of executive power started challenging the idea that Trump ought to possess those same powers. When the Republican Party moved forward in its failed attempt to repeal the Affordable Care Act, Democrats started arguing that the states should take the reins on health care policy in the absence of federal government oversight.

Conservatives and libertarians have made the affirmative case for the Constitution’s strict guidelines on the separation of powers and federalism since the beginning. While we made these points during the Obama administration, we did not stop making those arguments once President Trump was inaugurated last January. Most of us have challenged any Trumpian attempts to expand government power in places where it does not belong.

Conservatives are also known to have a substantial bone to pick with the administrative state. In particular, we have been vocally opposed to the idea that administrative agencies have the capacity to add new regulations to the law books without proper oversight from Congress, which is tasked in Article I of the Constitution to make law, and from Article III judicial review. However, the Supreme Court made that possible in 1984 in the landmark case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Writing for a unanimous court, Justice John Paul Stevens wrote the following:

In these cases, the Administrator’s interpretation represents a reasonable accommodation of manifestly competing interests, and is entitled to deference: the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involves reconciling conflicting policies. Congress intended to accommodate both interests, but did not do so itself on the level of specificity presented by these cases. Perhaps that body consciously desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. For judicial purposes, it matters not which of these things occurred.

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: “Our Constitution vests such responsibilities in the political branches.” TVA v. Hill, 437 U.S. 153, 195 (1978).

See Chevron U.S.A., Inc. v. NRDC, Inc., 487 U.S. 837, 865–66 (1984).

This policy, commonly referred to as Chevron deference, allows the courts to defer the judgment of administrative agencies in making regulatory rules even if such rules could be made against the interests of the people. Contrary to members of the House of Representatives and the Senate, those who run administrative agencies are not elected by the people and cannot be held accountable if their rules directly impact the lives of the people. For that reason, conservatives question the Chevron deference on the grounds that administrative agencies should face the same level of scrutiny our elected legislators receive whenever they pass bills that could be consequential to individual freedom.

The Left, however, thought that Chevron deference represented a public benefit. Whether the Environmental Protection Agency (EPA) created new regulations on the coal or oil industries or if the Consumer Finance Protection Bureau (CFPB) created restrictive rules against the banking industry, the Left believed that these bureaucrats represented the best interests of the people because they believed that these agencies looked out for their political agenda. By their logic, as long as Republicans in Congress are unable to gut these rules, then there would be no negative consequence for having administrative agencies acting as independent, law-making arbiters wearing the robes of a philosopher king.

Today, the Left seems to have changed its tone on appealing to the authority of administrative agencies. For example, when Scott Pruitt became Administrator of the EPA, the Left began to champion legal challenges against the EPA’s increasing policy of removing or changing regulations. However, the largest about-face that the Left has made with regard to administrative agency deference came yesterday after the FCC voted to revoke the Obama-era “Net Neutrality” rules.

Suddenly, prominent leftists started railing against the FCC’s legitimate authority to overthrow those changes. For example, socialist Sen. Bernie Sanders (I-VT), tweeted that Congress and the courts should fight back against the FCC.

In addition, 17 state Attorneys General announced that they intend to sue the FCC in order to save the “Net Neutrality” regulations. By their logic, the FCC should be challenged in the courts and by Congress about their agency rules on the grounds that they violate the interests of the people. The only way to make that argument is by overruling Chevron and by giving both Congress and the courts the ability to challenge the procedural and structural merits of administrative agencies like the FCC to make laws and rules.

This represents a tremendous reversal in how the Left views the power of the administrative state. Earlier this year, the Left chastised Trump’s nomination of now-Justice Neil Gorsuch because of his vocal opposition to Chevron deference. Now, the Left seems to be more open to the realization that leaving administrative agencies to unchecked rule-making abilities does not seem to be a legitimate means to govern the people. What is rather ironic about the Left’s newfound discovery of limited enumerated constitutional powers is that this does not emanate from principle but rather political convenience. The real question is whether the Left would be willing to (rightfully) overrule Chevron deference in order to earn a victory for “Net Neutrality” in exchange for losing the war against overreaching administrative authority.

If the Left maintains this viewpoint, then the Left will once again be aligned with conservatives on the proper degree of government power and influence on individual rights. However, knowing the Left, it will likely flip-flop once it comes to a fundamental understanding of what they are actually saying in their efforts to virtue-signal to their base. After all, they want to maintain as large and as powerful of a federal government as possible and Chevron is one of their main tools to make their authoritarian dream a reality.

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