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Chevron Debates and the Constitutional Transformation of Administrative Law \\jciprod01\productn\G\GWN\88-3\GWN303.txt unknown Seq: 1 9-JUN-20 10:28 Chevron Debates and the Constitutional Transformation of Administrative Law Craig Green* Chevron v. NRDC is under attack. Chevron deference to agencies’ statu- tory interpretation is a pillar of modern government that judges and bureau- crats have used almost every day for thirty years. Until recently, most observers dismissed efforts to overrule Chevron as impossible or absurd, yet one of Justice Anthony Kennedy’s last acts on the Supreme Court suggested that Chevron deference might violate the separation of powers. Constitutional threats to Chevron are surprisingly recent and grave. In 2015, Justice Clarence Thomas was the first judge in history to write that Chevron is unconstitutional. Anti-Chevron critiques by Justices Neil Gorsuch and Brett Kavanaugh were featured elements of their Supreme Court nomina- tions. Justice Samuel Alito joined an opinion in 2019 that condemned all ad- ministrative deference. And even though Chief Justice John Roberts’s concerns have been more nuanced, his ambivalence may be decisive. A landmark ruling seems imminent—one way or the other—and now is the time to analyze relevant arguments and consequences. This Article examines the history and merit of Chevron’s constitutional critiques. Reagan-era conservatives like Antonin Scalia used to celebrate Chevron as compatible with the separation of powers, and the Supreme Court viewed administrative deference as a perfectly ordinary practice for almost two hundred years. That historical evidence supports normative arguments that Chevron is consistent with basic structures of constitutional law. Overturning Chevron would be the most radical decision in modern history about constitu- tional structure, upsetting hundreds of precedents, thousands of statutory pro- visions, and countless agency decisions. Such a ruling would transform constitutional law itself, as judges apply newly aggressive theories to destroy established tools of democratic self-governance. TABLE OF CONTENTS INTRODUCTION ................................................. 655 R I. CHEVRON’S ORIGINAL MEANING AND DEFENDERS ..... 661 R A. Chevron in the 1980s ............................... 662 R * Professor of Law, Temple University. Ph.D., Princeton University; J.D., Yale Law School. Many thanks for comments on earlier drafts by Jane Baron, Pamela Bookman, Joseph Hall, Jonathan Lipson, Henry Monaghan, Andrea Monroe, Lauren Ouziel, Rachel Rebouche, ´ and Neil Siegel. Thanks also to Lee Begelman, Jennifer Berger, Dina Gayanova, Owen Healy, Colin Kane, Alisha Kinlaw, Linda Levinson, Brian Mahoney, Vanessa Milan, David Nagdeman, Sydney Pierce, Shauna Pierson, Devon Roberson, Bryan Shapiro, Noeleen Urmson, and Emily Welch for outstanding assistance during various stages of production. May 2020 Vol. 88 No. 3 654 \\jciprod01\productn\G\GWN\88-3\GWN303.txt unknown Seq: 2 9-JUN-20 10:28 2020] CHEVRON DEBATES 655 B. Chevron’s Conservative Enthusiasts ................. 665 R C. Alternatives to Constitutional Reform ............... 672 R II. LONG TRADITION(S) OF ADMINISTRATIVE DEFERENCE . 676 R A. Revising Historical Revisionism ..................... 677 R B. Administrative Deference Versus Interpretive Canons ................................. 681 R C. Deference in the 1940s .............................. 686 R III. MERITS OF CONSTITUTIONAL CRITIQUE ................ 694 R A. Nondelegation....................................... 694 R 1. Modern History of Judicial Critiques ........... 695 R 2. Rebutting Nondelegation Critiques ............. 705 R B. Marbury v. Madison ................................ 712 R C. Due Process and Equal Protection .................. 716 R D. English History ..................................... 721 R 1. Colonial English History ........................ 722 R 2. Eighteenth-Century American History.......... 724 R 3. Timeless History ................................ 729 R CONCLUSION ................................................... 732 R APPENDIX ...................................................... 734 R INTRODUCTION One week before announcing his retirement, Justice Anthony Kennedy declared that, “[g]iven the concerns raised by some Mem- bers of this Court,” the Supreme Court should “reconsider . prem- ises that underlie Chevron” based on “constitutional separation-of- powers principles and the function and province of the Judiciary.”1 Until recently, most lawyers would have found Justice Kennedy’s con- stitutional objections hard to understand, and many experts believed that reversing Chevron on separation-of-powers grounds was unrealis- tic or absurd.2 1 Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring) (discussing Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984)). The petition for certiorari, oral argument, and parties’ briefs did not question Chevron’s legal status, much less did they dispute its constitu- tional validity. See Petition for a Writ of Certiorari, Pereira, 138 S. Ct. 2105 (No. 17-459); Tran- script of Oral Argument, Pereira, 138 S. Ct. 2105 (No. 17-459); Brief for Petitioner, Pereira, 138 S. Ct. 2105 (No. 17-459); Brief for the Respondent, Pereira, 138 S. Ct. 2105 (No. 17-459). 2 E.g., ADRIAN VERMEULE, LAW ’S ABNEGATION: FROM LAW ’S EMPIRE TO THE ADMINIS- TRATIVE STATE 31 (2016) (“[T]here is no indication whatsoever that the Court as a body has any interest in overruling Chevron. The center holds.”); Thomas W. Merrill, Step Zero After City of Arlington, 83 FORDHAM L. REV. 753, 755 (2014) (“Chevron has now been invoked in far too many decisions to make overruling it a feasible option . .”); Gillian E. Metzger, Foreword, 1930s Redux: The Administrative State Under Siege, 131 HARV. L. REV. 1, 24, 27, 39, 42 (2017) (describing constitutional objections as “implausible” because “only Justices Thomas and Gor- \\jciprod01\productn\G\GWN\88-3\GWN303.txt unknown Seq: 3 9-JUN-20 10:28 656 THE GEORGE WASHINGTON LAW REVIEW [Vol. 88:654 By contrast, Kennedy implied that four other Justices wanted to revisit, not only specific applications of Chevron, but fundamental “premises that underlie” the doctrine itself.3 No Justice disagreed with Kennedy’s statement at the time, and Justice Brett Kavanaugh’s re- cord of criticizing Chevron suggests that the current probability of overturning Chevron is higher than anyone could have imagined a few years ago.4 To overrule Chevron on constitutional grounds would be a mas- sive shock to the legal system. Chevron has been a pillar of federal public law for more than three decades, and it is among the most cited Supreme Court decisions of all time.5 When Chevron was decided in such” support such arguments and “[f]ar too many judicial decisions sustain administrative ac- tions on deferential review”); see also Nicholas R. Bednar & Kristin E. Hickman, Chevron’s Inevitability, 85 GEO. WASH. L. REV. 1392, 1461 (2017) (similar); Jonathan R. Siegel, The Consti- tutional Case for Chevron Deference, 71 VAND. L. REV. 937, 938–39 (2018) (similar); cf. VERMEULE, supra note 2, at 13 (describing a “long-term trend of judicial deference to agency R legal interpretations” and claiming that deference “would persist in de facto form even if Chev- ron were overruled”). 3 Pereira, 138 S. Ct. at 2121 (Kennedy, J., concurring) (citing City of Arlington v. FCC, 569 U.S. 290, 312–16 (2013) (Roberts, C.J., dissenting)); see also Michigan v. EPA, 135 S. Ct. 2699, 2712–14 (2015) (Thomas, J., concurring); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch, J., concurring). Justice Alito joined Chief Justice Roberts’s dissent in City of Arlington v. FCC, 569 U.S. 290, 312 (2013) (Roberts, C.J., dissenting), and the year after Pereira, he also joined a Gorsuch opinion attacking administrative deference. See Kisor v. Wilkie, 139 S. Ct. 2400, 2425 (2019) (Gorsuch, J., concurring in the judgment). 4 See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118, 2150–54 (2016) (book review) [hereinafter Kavanaugh, Fixing Interpretation]; Brett M. Kava- naugh, Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Con- stitutional Exceptions, 92 NOTRE DAME L. REV. 1907, 1911–13 (2017); Brett Kavanaugh, The Joseph Story Distinguished Lecture, HERITAGE FOUND. (Oct. 25, 2017), https:// www.heritage.org/josephstory2017 [https://perma.cc/X6VS-2VTP]; Brett M. Kavanaugh, HLS in the World: A Conversation with Federal Judges About Federal Courts, HLS 200 (Oct. 27, 2017), http://200.hls.harvard.edu/events/hls-in-the-world/conversation-federal-judges-federal-courts/ [https://perma.cc/C93F-WFL4]; cf. Pereira, 138 S. Ct. at 2129 (Alito, J., dissenting) (“In recent years, several Members of this Court have questioned Chevron’s foundations.”). This Article cannot predict what the Court will do. Instead, the more urgent goals are to describe the recent past and make normative suggestions about what the Court should do in the foreseeable future. 5 See Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, in ADMINISTRATIVE LAW STORIES 399–400, 399 n.2, 400 n.4 (Peter L. Strauss ed., 2006) (discuss- ing the significance of Chevron); PETER L. STRAUSS ET AL., GELLHORN & BYSE’S ADMINISTRA- TIVE LAW 620 (9th ed. 1995) (“Now for you agency case lawyers. In every case involving statutory interpretation, think Chevron.” (quoting Judge Patricia Wald, Advocacy from the Viewpoint of an Appellate Judge 9 (Oct. 28, 1994))); VERMEULE, supra note 2, at 200 (describing R Chevron as “[t]he most famous
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