Chevron, Independent Judgment, and Systematic Bias


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

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.


Philip Hamburger

Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He is a scholar of constitutional law and its history, and his publications include Separation of Church and State (Harvard 2002), Law and Judicial Duty (Harvard 2008), Is Administrative Law Unlawful? (Chicago 2014), and numerous articles. Before coming to Columbia, he was the John P. Wilson Professor at the University of Chicago Law School. He also has taught at George Washington University Law School, Northwestern Law School, University of Virginia Law School, and the University of Connecticut Law School.

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  1. gabe says

    ” 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.”

    Rather like this take on the matter.

    Is this a view that is shared by others in the legal academy? In other words, does it have, or will it gain traction? Just curious.

  2. R Richard Schweitzer says

    Much has been written and said about limitations on the capacities of the legislative branch to **delegate** its constitutional authorities.

    Perhaps the time has come to consider the difference between devolutions of powers and delegations of authority.

  3. R Richard Schweitzer says

    The reason “devolution” should be given closer consideration is to be found in the ways in which federal legislation is compounded, the sources of its structures, and the resulting products.

    The bulk of federal legislation is compounded and structured by professional (unelected) staffs who are largely members of a managerial class (project managers). It is structured to respond to or take advantage of the objectives of particular political, social and economic interests. Those structures, often skeletal, are designed to provide a framework for the actions of other members of the managerial class (also unelected), the administrators. The resulting products are “legislation” compounded and structured by managers for other managers. That may be one implication of the Chevron Doctrine.

    The devolution that occurs through that process of “legislation” is not ordinarily structured to delegate authority with specificity and limits; those are to be found by the administrators in devising means for the structures to attain broadly or loosely defined objectives.

    The priorities for the elected have become almost exclusively election and not the functions for which the elections are made. The erosion of earlier priorities has led to the increased devolution of the process of legislation.

  4. Rich Weinstein says

    Well that’s quite the trick, isn’t it. You can convince your fellow congresspeople to vote for a bill that they believe says one thing- best to rush the bill through so there’s no time to actually read it- but write it just a bit ambiguously so that the Administration can interpret and execute another way. This essentially makes the Admin exempt from following the law if they can smudge up the language enough to leave room for uncertainty. This in fact tilts the scales of justice toward the Administration; typically in a Civil proceeding both sides start on equal footing. But not in the case of a Chevron defense, where the Administration instead has the benefit of innocent until proven guilty beyond a reasonable doubt.

    In the case of Halbig, the Congressional leadership pushed through the largest tax hike and redistribution scheme in the history of our Republic. They did it using Parliamentary gimmicks and against the will of the American people. They couldn’t force the States to behave they way they wanted so they used the carrot/stick philosophy to gain some votes. And they left enough ambiguity to rewrite the law through regulation as they saw fit, even if it was contrary to what they told certain Senators to gain their support.

    Even with getting caught red handed on video in the form of Jonathan Gruber, they still are claiming Chevron.

    If this isn’t by definition a soft tyranny, I don’t know what is.

    • R Richard Schweitzer says

      And all that was done by staff writers and re-writers, whose work was not vetted outside the doors of harry Reid’s office until it went to the floor.

      Oh yes, what was that “overwhelming” concurrence by the H R; how many votes?

      This is a broad sample of government by the unelected.

  5. z9z99 says

    “…a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

    Connally v. General Construction Co., 269 U.S. 385, 391 (1926):

    • gabe says



      I suspect that the specific intention of the drafters was to make it as vague as possible in the almost certain knowledge that it would be “interpreted” by empowered agencies.
      As for those who hail the need for expertise in the drafting of statutes, the question becomes: what expertise – could it be the planned “ambiguity” of statute so that their friends in Executive agencies may “create” the law as they and their interests groups desire!


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