Recently, Justice Gorsuch has continued his attack on Chevron deference by writing a statement accompanying the denial of certiorari, joined by Roberts and Alito, that raised serious questions about the decisions of some lower courts to extend Chevron deference to contracts entered into with administrative agencies.
The FCC is about to eviscerate the Obama administration’s rules on net neutrality. One of its reasons is that the elimination of net neutrality will provide incentives for internet providers to put more investments into speeding up the system, because the network providers, not the government, will make pricing decisions. But how can internet providers be confident that they will reap the value of their investments given that any Democratic Administration elected in 2020 will almost surely bring back net neutrality? And one of the Democrats’ arguments in favor of net neutrality will surely be that net neutrality gives content providers the confidence to invest in content. Wash, rinse and repeat!
The partisan vacillation about net neutrality show how the administrative state in our politically polarized time can be a powerful force for instability and therefore a hindrance to economic growth. Of course, the original conception of the administrative state made it a bulwark of stability, since its judgments rested on technocratic science. But no one much defends anymore the view that administrative policies emerge from a transmission belt of science. Instead agencies use their broad statutory delegations to make substantially political decisions. And Chevron has effectively broadened those delegations, because it gives agencies the power to interpret the scope and content of these delegations so long as that interpretation is reasonable, even if it is not the best one.
The instability created by the administrative state contrasts with the stability in government that James Madison believed “essential to [its]national character.”
As the confirmation battle over 10th Circuit Judge Neil Gorsuch—Donald Trump’s nominee to fill the late Antonin Scalia’s Supreme Court seat—takes shape on cable news shows and across newspaper opinion pages, phrases like “judicial restraint” and “judicial activism” dominate much of the discussion.
While anyone you ask will agree that restraint is good and activism bad, and that judges should be careful not to usurp lawmaking authority from the people’s duly elected representatives, it’s often difficult to figure out exactly what people mean when they give their opinion on this subject. All too often, calls for judicial restraint or deference are not about dispassionately applying the law and leaving the policy decisions to Congress; they are calls for blind rubber-stamping of governmental action.
Judge Neil Gorsuch is worthy successor to Justice Antonin Scalia. He is an advocate of originalism who writes well enough to persuade the public and has the intellectual heft to engage the academy. But there is one way in which he differs sharply from Scalia. He is no fan of the Chevron doctrine, which directs judges to defer to agency interpretations of statutes so long as they are reasonable even if the interpretations are not the best. Given that much of modern law is administrative law and so much of our current democratic deficit is due to the administrative state, this is an important difference.
And it is a difference that reveals something about President Donald Trump, about the changing nature of modern legal conservativism, and about the internal tension of the Democratic opposition to Gorsuch.
A common criticism of President Trump is that he is an authoritarian executive. But he has chosen to nominate a judge who is on the record against giving deference to interpretation of statutes by heads of executive agencies. Gorsuch opposes an important doctrine that would protect the administration’s authority.
In my previous post, I talked about how delegation came to dominate our government. I focused on two types of delegation – delegation of policymaking discretion and delegation of legal interpretation, such as Chevron deference.
I suggested that Chevron was a disaster, because it greatly added to the delegations that had already occurred though congressional statutes. The courts could have simply enforced those congressional delegations without adding to them with Chevron. But instead they invented Chevron – which had not been enacted by Congress – and greatly expanded the delegations.
Chevron was also a disaster in another way. One might believe that Republicans are generally more in favor of limited government than Democrats these days, especially as to government regulation. This is not an uncontroversial judgment, but I believe it is largely correct. And if that is so, then the Republican judges of the 1980s undermined their cause when they pushed Chevron. Chevron allowed administrative agencies significantly more authority to enact regulations.
We now live in a world of delegation. It is often said that most of the rules that are enforced at the federal level have not been enacted by Congress, but by administrative agencies. It was not always that way. The binding rules in the United States used to be enacted or recognized by other entities. The statutory rules would be enacted by Congress and they would be interpreted by the courts. Common law rules would be recognized by the federal courts. And, of course, more areas were addressed solely at the state level. It is true that agencies sometimes exercised delegated authority, but it was a much more limited affair.
This transformation to a world of delegation – to the Administrative State – has been quite astounding. It is worthwhile pausing to consider some of the ways it happened. There are two principal types of delegation that have occasioned this transformation: delegation of policymaking and delegation of legal interpretation.
The delegation of policymaking involves a congressional decision to authorize an agency to exercise policymaking discretion. For example, many statutes that authorize agencies to take actions that are in the public interest are best interpreted as delegating such discretion to the agency. The responsibility for this delegation largely lies with Congress, which decided to pass the statute. The lead in this type of delegation has been taken by the Democrats – during the New Deal, the Great Society, and the Obama Administration – but the Republicans have certainly employed this tactic as well. Additional responsibility for this type of delegation must lie with the Supreme Court, which after striking down a few delegations in 1935, has not struck down any, with the one possible exception of the Line Item Veto Act – the one delegation that would reduce the size of government.
In a momentous decision, a panel of the D.C. Circuit (Judges Srinivasan, Tatel, and Williams; opinion by Srinivasan, partial dissent by Williams) has upheld the FCC’s “net neutrality” rule. Henceforth broadband providers will be regulated not as information providers but as a “telecommunications service” under Title II of the Communications Act. Among other things this entails “must carry” obligations and a command that the providers may not charge different rates to different content providers (in regulatory parlance, “paid prioritization”).
Proposals for a “convention of the states” roil the Left and Right.
Texas Governor Greg Abbott made news early this month when he advocated an Article V convention of states to amend the U.S. Constitution to rein in the overreaching federal government, and restore the proper balance of power between the states and the federal government.