The recent circuit court decision in Halbig v. Sebelius has exposed doubts about Chevron deference, but what exactly is wrong with such deference? The usual answer comes in terms of delegation, representative government, and other objections to agency interpretation. But there are more direct objections to judicial deference. First, it violates the constitutional duty of judges to exercise their own, independent judgment. Second, it is systematic judicial bias in violation of the Fifth Amendment.
The 1984 Supreme Court decision in Chevron U.S.A. v. Natural Resources Defense Council requires judges to defer to agency interpretations of ambiguous authorizing statutes. The majority opinion in Halbig concluded ultimately that the ACA was unambiguous, and it therefore refused to defer to the IRS interpretation of the statute. In contrast, the dissent relied on Chevron, declaring: “It is not the prerogative of this court to interpret the ambiguities uncovered in the ACA. Congress has delegated this authority to the IRS . . .”
Of course, the dissent was stretching the application of Chevron to a relatively unambiguous statute, and Halbig therefore does not really reveal a judicial debate about the basic legitimacy of Chevron. Nonetheless, Richard Samuelson, writing on these pages, aptly takes the opportunity to ask “whether the Chevron Doctrine itself is mistaken”–a question echoed by Damon Root at Reason.com.
These comments are important, and they are of particular interest to me, because I recently completed an article called “Deference to Administrative Interpretation: The Unasked Questions,” which explores the questions of independent judgment and systematic bias.
Thus far, the judges have treated Chevron deference as a question of statutory authority. There is good reason to protest that agency interpretation is a form of unconstitutional delegated lawmaking. As put by Samuelson, “it has deeply troubling implications for republican self-government.” Such constitutional objections, however, have not garnered much traction in the courts, and the judges (including all the judges in Halbig) therefore tend to focus merely on the statutory question of whether there is congressional authorization for agencies to interpret.
Yet this statutory inquiry is not the end of the matter, for even where agencies have statutory authorization to interpret for their purposes, there are constitutional questions about the role of the judges. In other words, the judicial deference problem is different from the agency interpretation problem, and once one focuses on the deference, one must worry about what the judges are doing. Two constitutional questions are central.
The first concerns independent judgment. Under the Constitution, the judges have an office or duty to exercise their own independent judgment about what the law is, and it therefore must be asked how the judges can defer to the interpretation or judgment of executive and other agencies. In respecting or otherwise deferring to the judgment of agencies, the judges are abandoning their duty–indeed, their very office–of independent judgment.
The second question about the judges concerns systematic bias. Under the Fifth Amendment, Americans have a right to the due process of law, and it therefore must be asked whether judicial deference is systematic bias for one party and against others. The judges defer to agencies’ interpretations of statutes, and they thereby typically are favoring the interpretation or legal position of one of the parties in their cases. They thus are engaging in systematic bias in favor of the government and against other parties in violation of the due process of law.
These constitutional questions about the role of the judges should worry all Americans but especially the judges. No amount of statutory authority can put these constitutional questions to rest. A mere statute may allow an agency to interpret for its purposes, but it cannot excuse the judges from their constitutional duty to exercise their own independent judgment about the law. Nor can it brush aside the constitutional right of parties not to be subjected to systematic bias.
These are the two questions about deference that the judges have failed to ask. My article therefore asks the judges to live up to their duty of independent judgment and to respect the right of due process.