Happy 30th Anniversary, Chevron - Part II
Published in The Hill
September 3, 2014
In my Aug. 8 column for The Hill titled "Happy 30th anniversary, Chevron!," I commemorated the Supreme Court's landmark decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. As I explained, Chevron" fundamentally altered the existing jurisprudence regarding deference owed decisions of administrative agencies by reviewing courts." By requiring courts to give greater deference to agency opinions interpreting ambiguous statutory provisions than previously required, the court's 1984 decision has facilitated the expansion of the agencies' regulatory reach.
Chevron's deference doctrine rests primarily on notions of political accountability. In the key passage, the court stated: "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." Therefore, according to the court, it is proper to rely on "the incumbent administration's" policy views. In my Aug. 8 column, I suggested that Chevron's political accountability rationale for requiring greater judicial deference "provided a foundational construct for fitting administrative agencies into the separation of powers doctrine at the core of our constitutional regime."
The court's rationale may make sense as a matter of separation of powers doctrine - but only up to a point. As I first argued in a 2006 law review article, "Defining Deference Down: Independent Agencies and Chevron Deference," the case for giving heightened judicial deference to the decisions of the so-called independent agencies, such as the Federal Communications Commission (FCC), Federal Trade Commission (FTC), the Securities and Exchange Commission (SEC) and the Commodities Future Trading Commission, is considerably less persuasive.
Read the entire piece: http://thehill.com/blogs/pundits-blog/the-judiciary/216471-happy-30th-anniversary-chevron-part-ii
* Randolph J. May is President of the Free State Foundation, an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland.
