Book Reviews

Legal Conservatism’s Chevron Pivot

February 1, 2023

Jesse Merriam

Washington Fellow

This essay was originally published on January 31 by Law & Liberty.

To fully appreciate the controversy over Chevron, one must confront the dubious constitutional status of the administrative state.

A popular topic these days is the shifting alignment of our political parties, particularly on such controversial matters as globalization, foreign policy, and censorship. Less documented, however, is how these shifts in electoral politics relate to changes in judicial politics.

Thomas Merrill’s most recent book, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State, is about a particular legal doctrine in administrative law, but Professor Merrill’s book is also, more broadly, about how Supreme Court decisions turn into doctrines and then into legal regimes. Indeed, Merrill recounts how the Supreme Court’s Chevron v. Natural Resources Defense Council (1984) decision became the Chevron doctrine, the most significant doctrine in administrative law. But suddenly, in 2016, after having employed Chevron as a standard of review over 100 times, the Supreme Court stopped citing Chevron, leading many observers to wonder whether it will soon be overruled.

Merrill’s analysis is not just about legal change; it is also about how this change works in conjunction with shifting political alignments. Indeed, in exploring how the Chevron doctrine, at one time promoted by conservatives, has become the bête noire of the legal conservative movement, Merrill’s analysis of the rise and fall of Chevron is part of a larger story—a story about a movement in flux. Merrill’s book, therefore, is of interest even to scholars (like the author of this review) who do not study or teach administrative law.

The book is in many ways what we have come to expect from one of the country’s leading administrative law scholars. Professor Merrill’s description of the rise and fall of the Chevron doctrine is thorough and erudite, providing sufficient background and depth to be of value to experts and non-experts alike. Likewise, Merrill’s prescription of how to modify Chevron is nuanced and thoughtful. But here, in the prescriptive mode, is where readers may diverge. While readers sympathetic to Chevron will likely find Merrill’s prescriptive arguments compelling, readers who are not so inclined will likely find the analysis edifying but not entirely convincing.

Merrill’s Agenda: Refining Chevron

The Chevron doctrine consists of a two-step standard of review in cases involving whether an agency’s rule-making falls within the parameters of the agency’s governing statutory law. The first step requires the court to determine whether the agency’s interpretation of its governing law arises in an area where there is statutory ambiguity. If there is no ambiguity, the analysis ends there, and the court simply applies the statute. But if there is ambiguity, which is often the case, the court must move on to the second step. This second step requires the court to determine whether the agency’s interpretation of the statute is reasonable in light of that ambiguity, which is also often the case. These two steps thus often amount to judicial deference to agency discretion in terms of how the agencies set policies under their governing statutes.

The principal criticism of the Chevron doctrine is that, because federal courts are empowered by Article III to review the legality of governmental actions, federal courts must use their own independent judgment in assessing agency interpretations of their governing statutes. This means that de novo review (i.e., independent judicial scrutiny) and not a deferential standard of review is appropriate to determine whether an agency interpretation is lawful.

But de novo review raises its own problems. Chevron cases often involve technical and scientific questions that judges are not well-equipped to assess. What gives a judge the authority or expertise to question agency interpretations on the Federal Power Act’s “necessary or convenient” standard for licensing hydroelectric facilities, the method to calculate reimbursement rates for hospitals providing prescription drugs under the Medicare statute, or the “best system of emission reduction” under the Clean Air Act?

De novo review also raises judicial time-management problems. It is one thing for the Supreme Court—which gets to pick its cases and hears about 100 cases per year, with a scattering of those involving administrative law questions—to engage in de novo review of agency decision-making. But it is quite another to expect the DC Circuit—a court whose much larger docket consists predominantly of agency appeals, constituting roughly 1/3 of the agency appeals in the nation—to be burdened with applying de novo review to the varied and technical agency interpretations that come before it.

Merrill is sympathetic to but critical of both of these viewpoints, and he therefore seeks to preserve but refine Chevron deference by “calibrating court-agency relations” around four types of values: 1. “rule of law values” (i.e., “stability of expectations about the law”; 2. “constitutional values” (by which Merrill refers mostly to “separation of powers issues”; 3. “accountability values” (i.e., “the importance of having discretionary policy decisions made by politically accountable decisions”); and 4. “better agency decisions” values (which, for Merrill, is about improving “public participation before the [agency’s] interpretation is adopted” and requiring agency “explanation for why it chose the interpretation it adopted”).

Merrill’s calibration of Chevron deference around these four values constitutes the book’s prescriptive analysis, culminating in a three-step doctrine that Merrill proposes in Chapter 13, “Reforming the Chevron Doctrine.” Merrill’s principal modification here is to add a threshold question, constituting a new Step 1, in which judges are required to engage in “judicial determinations of the boundaries of agency authority.”

Although this addition is tailored to comfort scholars and judges who are concerned about how Chevron undermines our tripartite scheme of government, Merrill’s new formulation is unlikely to be persuasive, for reasons discussed below.

The Constitutional Criticism of Chevron

Chevron critics are generally not driven by concerns about increasing agency consistency, making agencies more accountable, or enhancing the epistemological framework in which agencies operate. The critics, rather, have much broader concerns: the whole enterprise of government by bureaucracy. Here, it seems to me, is the biggest weakness in what is otherwise an excellent book: Merrill does not sufficiently engage what is really driving the controversy over Chevron—the dubious constitutional status of the administrative state.

Merrill does, to be sure, acknowledge the constitutional criticisms. For example, he cites his Columbia Law School colleague Philip Hamburger as one of the scholars opposed to Chevron, and in the course of discussing Chevron’s critics, Merrill covers the delegation doctrine and its relationship to legislative supremacy within our constitutional order. But Merrill too easily dismisses these constitutional arguments, without sufficiently considering how Chevron has enabled the rise of the administrative state and the transformation of the tripartite system created in 1787.

Likewise, while Merrill addresses “federalism values” in his discussion of the preemption of state law under the Supremacy Clause, this discussion minimizes what is at stake in Chevron. The federalism problem is not limited to preemption; rather, the federalism issue, it seems to me, undergirds the entire Chevron controversy, in that agencies often act in ways that exceed the limits of congressional authority enumerated in Article I, Section 8.

Merrill does address this point by adding a new step to the analysis, so that courts must inquire whether the agency’s interpretation has exceeded the boundaries of agency authority, including the boundaries established by “[i]ndividual constitutional rights and federalism principles.” But Merrill proceeds to write that, “[i]n enforcing the boundaries on agency authority, courts should give respectful consideration to the agency’s view of the proper scope of its own authority.” And “[i]f the agency interpretation is consistent with past understandings of the scope of its authority, this should be given weight in making the judicial determinations.”

Giving agencies “weight” in how they see their own authority in relation to specific constitutional guarantees seems unlikely to comfort those who are concerned about the constitutional ramifications wrought by the rise of the administrative state.

Ignoring Broader Changes in Judicial Politics

Merrill likewise does not sufficiently engage the broader ideological issues. That is not to say he ignores the judicial politics surrounding the post-2016 shift away from Chevron. On the contrary, he begins the book by noting that “[c]onservative judges and lawyers—including two of the Justices named to the Supreme Court by President Trump—have argued that Chevron must be overruled or at least significantly modified.” Merrill contrasts these conservatives with how “[l]iberal judges and lawyers—including the Justices named to the Court by Presidents Clinton and Obama—generally think Chevron should remain undisturbed or perhaps only modestly reformed.”

If destroying Chevron simply means transferring administrative power away from agencies to unelected, life-tenured judges, this whole controversy seems to be more about power than principle.

Moreover, throughout the book, Merrill notes how this ideological division is strikingly different from the one that characterized the first 30 years of Chevron’s existence. For example, he observes that “[t]he Chevron doctrine, once it got going, was … regarded for some time as a ‘conservative’ doctrine” and how “[c]onservative judges and commentators were generally enthusiastic about the Chevron doctrine when it was established, and never raised the Article III objection.” But somehow Chevron “became controversial with conservative legal commentators and then judges, especially during the years of the Obama administration,” so that by the time of the Trump Administration, “the Chevron doctrine had become anathema to conservatives,” to the point that Neil Gorsuch and Brett Kavanaugh were nominated to the Supreme Court principally because of their open hostility toward Chevron.

Merrill never tells us, however, what accounts for this remarkable volte-face within the legal conservative movement. The closest he has come to providing an explanation, to my knowledge, is in his recent Case Western School of Law presentation on the book. Professor Merrill began that presentation by wondering why, over the last several years, “the previous enthusiasm [for Chevron] on the part of conservative Justices [has] disappeared.” He then offered what he expects to be the standard political science answer—namely, that conservative Justices supported Chevron when the administrative agencies were controlled by Republicans, and then switched positions when the administrative agencies were controlled by Democrats in the Obama years.

Merrill rejects this political science explanation on the ground that the switch is “not quite that simple” and “is more puzzling than that.” Indeed, such an account is clearly wrong, given that, as he points out, conservatives favored Chevron in the Clinton years and the most forceful and widespread opposition against Chevron among conservatives materialized when President Trump was in power. So Merrill is right that there is not a “one-to-one correlation that the political scientists might advance” between party control of the agencies and the left-right breakdown on Chevron.

Merrill does not, however, seek to go beyond this imaginary political science account, which is a rather vulgar caricature of how political scientists study judicial decision-making. Judicial politics scholars do not focus simply on electoral politics in examining how courts operate. For example, the leading political scientists studying legal conservatism—such as Steve Teles and Amanda Hollis-Brusky—focus much more broadly on how activists and scholars (often referred to as “intellectual entrepreneurs”) and movement organizations (often referred to as “support structures”) work within political institutions to create change.

On this point, it is quite revealing that there was a sudden shift in the Federalist Society on the administrative state around 2016, not simply in terms of what the leading scholars had to say about the doctrine but also in terms of where the doctrine stood in terms of the organization’s priorities. This prioritization of Chevron is clear from the fact that in 20172018, and 2020 the National Lawyers Convention focused on themes principally relating to Chevron and the administrative state. It is not a coincidence that, during these years, after President Trump essentially outsourced his Supreme Court nomination authority to the Federalist Society, Neil Gorsuch and Brett Kavanaugh were both selected because of their outspoken hostility toward Chevron.

The change at the heart of Merrill’s book—the sudden switch against Chevron—is part of a much larger change: the libertarian turn within the legal conservative movement. This is a change that can be observed in various areas of law, including originalist theory, views on judicial activism, and the scope of the Fourteenth Amendment. Not coincidentally, all of these changes picked up steam at roughly the same time: between 2010 and 2015.

Merrill’s prescription is unlikely to be convincing to the leading Chevron critics because their rejection of Chevron is largely orthogonal to the thrust of Merrill’s book. Whereas Merrill seeks to refine Chevron to improve agency decision-making, the critics are seeking to overrule Chevron, as part and parcel of a broader libertarian agenda relating to the federal judiciary and its role in protecting individual liberties from governmental regulation. One cannot sort out the puzzle at the heart of Merrill’s book without considering these broader changes within legal conservatism as a movement.

Is Chevron Really the Issue?

None of this is intended as a knock against Merrill’s outstanding book. I intend only to point out that there is something missing from the conversation around Chevron. And Merrill, while offering lots of useful insights, does not fill the gaps in this conversation.

Both Chevron’s apologists and critics are missing something significant. If the administrative state is going to exist in its current form, then it seems that the apologists (currently legal liberals) have the better argument, in that agency interpretation is simply too vast and too complicated for lower courts to handle anything but a deferential standard of review.

But the apologists neglect what the administrative state has done to our polity, not just in vanquishing our tripartite scheme, but also in weaponizing our politics. By turning our variegated system into a monolithic administrative state, at the disposal of whichever party controls the White House, we have turned our national elections into Red v. Blue proxy wars, with each election raising the possibility of escalating into an actual war.

There is no easy way out of this, but part of the answer, it seems to me, requires decentralizing decision-making, which requires reducing the power of the administrative agencies and reducing the power of the federal judiciary.

If destroying Chevron simply means transferring administrative power away from agencies to unelected, life-tenured judges, as many legal libertarians are urging, this whole controversy seems to be more about power than principle. Such a move will not solve our political crisis but is likely to exacerbate it by further politicizing our courts and the confirmation process. If destroying Chevron, however, means weakening the administrative state, and not simply empowering courts to handle the task, then count me among those cheering for its fall. Dismantling the administrative state is not a solution but it’s a good start to restoring our constitutional order.