I’ve just published a short article on Chevron and Loper Bright in CPI Antitrust Chronicle, called “Goodbye, Chevron: Rediscovering the Virtues of an Independent Judiciary“. Most of it talks about the Chevron regime generally, though some of it mentions the specific consequences for antitrust policy.
The issue of CPI Antitrust Chronicle also contains a number of other Chevron-related articles:
“A Quartet of Decisions That Cripple Agencies,” by Richard J. Pierce, Jr.; “A New Era of Deference: From Chevron to Loper Bright,” by Daniel E. Walters; and “Loper Bright and Antitrust: Limited Impact on Enforcement, but a Clear Constraint on FTC Rulemaking,” by David Kully, Lynn Calkins, and Ken Racowski.
You might encounter a paywall, so here are a few excerpts from my article:
The Chevron Court had defended the rule of deference by appealing to agencies’ greater subject-matter expertise and democratic accountability (through the president). These twin policy rationales are both potentially relevant for agencies like the FTC, though neither is airtight. In the first place, the FTC has over a century of experience in defining “unfair methods of competition.” (But again, recall that, when such unfair methods relate to labor, one can debate whether the FTC should have any privileged position relative to, say, the Department of Labor.) And in the second place, the FTC is subject to political control, and it surely shows some responsiveness to democracy that the FTC’s views have shifted substantially with administrations of different political parties. (Though at the same time, it can be problematic to talk about democratic accountability for independent commissions that are, by design, shielded from presidential control through restrictions on removal.)
But, more broadly, these policy rationales are in substantial tension with other features of separation-of-powers law. Much of administrative law was forged in the D.C. Circuit of the 1960s and 1970s, when influential appellate judges — “liberals” and “judicial activists” like J. Skelly Wright and David Bazelon — tightened up the APA’s procedural requirements and developed a “searching and careful” version of hard-look review. Their idea was that — contrary to the credulous view of apolitical bureaucratic expertise that prevailed in the 1930s — agencies will tend to pursue narrow agendas (for instance, the agenda of the regulated industry itself) rather than the public interest, and therefore need a strong and independent separate branch to check their bad impulses. These procedural and substantive features of administrative law can be thought of as anti-delegation canons, predating by decades the major questions doctrine and coming from a very different ideological perspective than, say, the anti-administrative anti-delegationism that has long been popular in Federalist Society circles and is now championed by Justices Gorsuch and Thomas.
Consider, too, one of the finest moments of separation-of-powers doctrine, which arose in a military-and-national-security-adjacent context where one would have expected strong deference. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court held that President Truman didn’t have the power to seize steel mills, even though the president claimed military necessity.
Was there ambiguity in the statute? Yes, there was: Just as in Loper Bright, the statute provided the necessary seizure authority in a number of cases but was silent on the case at hand; this could be interpreted as mere statutory silence, but (in a sort of expressio unius move) the Court instead interpreted it as a congressional decision to deny the president the seizure power. Was there subject-matter expertise? Yes, because the president, as Commander-in-Chief, understands military necessity better than judges, and because the Supreme Court has long held that the president occupies a privileged position when foreign and military affairs are involved. Was there democratic accountability? Yes, because the president himself (not some obscure agency) was directly involved, and because the Korean War (though never declared by Congress) had a high degree of political salience.
Nonetheless, the Court exercised its independent judgment and kept the president within statutory and constitutional bounds. The Youngstown Court and the later D.C. Circuit judges would surely have agreed that to do otherwise would be to leave the fox guarding the henhouse.
And here’s a bit from the end, suggesting that someone (like me) who, looking at current poll results in swing states two weeks before the election, is afraid of the possibility of a new Trump term, might welcome a move that reins in agencies’ discretion to determine the bounds of their own power:
Putting the courts in the driver’s seat, and preventing agencies from interpreting statutes in ways that are wrong but not crazy — these are positive moves. Consider, for some perspective, City of Arlington v. FCC, where the Supreme Court confronted whether Chevron applied to an agency’s interpretation of the scope of its own jurisdiction or authority. Justice Scalia wrote that the distinction between jurisdictional and non-jurisdictional interpretations is illusory: “No matter how it is framed, the question a court faces when confronted with an agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.” For courts, the jurisdictional/non-jurisdictional distinction is meaningful: “Whether the court decided correctly is a question that has different consequences from the question whether it had the power to decide at all.” But for agencies, that distinction makes no sense: “Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires.”
Justice Scalia used that reasoning as an argument in favor of Chevron deference: Because the question of whether the agency acted ultra vires is the same every time the agency adopts an interpretation of its statute, there’s no reason to separate out supposedly “jurisdictional” interpretations.
Against the background of his longstanding support for Chevron, this meant Chevron all the time. But one could turn this around and make it an argument against Chevron deference.
The premise and promise of cases like Youngstown is that courts are ready to guard against executive overreach by authoritatively interpreting statutes and holding the government within its proper bounds. The “province and duty of the Judicial Department,” says Marbury v. Madison, is, after all, to “say what the law is.” But Justice Scalia’s reasoning implies that all agency statutory interpretations are created equal; if this is so, then any deference allows the fox to guard the henhouse, and any admission that the agency is wrong-but-not-crazy amounts to acquiescence in ultra vires action.
The Marbury/Youngstown promise of checks and balances works when courts tell the executive what statutes mean — not the other way around. The idea of robust separation of powers sits uneasily with an attitude that the Executive Branch is allowed to be wrong-but-not-crazy. Of course, if there really were a delegation of congressional lawmaking power, that might be acceptable under our current loose non-delegation doctrine; but the idea of anti-delegation canons suggests that such delegations shouldn’t be casually allowed as a broad background principle of administrative law.
Much of the hand-wringing over the end of the Chevron regime stems from the idea that agencies are fundamentally more trustworthy interpreters of the statutes they administer than are federal courts. How the political winds change: Back in 1984, some critics interpreted Chevron as a capitulation to the Reagan Administratio[n’s] deregulatory tendencies. Indeed, everything old is new again: The modern-day criticism of federal courts, especially the current Supreme Court, looks a lot like it did in FDR’s day, right down to some commentators’ advocacy of court-packing; and the relative defense of agencies has the flavor of the 1930s paeans to technocratic, apolitical expertise.
But some perspective may be useful. For every utopian vision of well-meaning technocrats hobbled by lawfare and stymied by ideological judges, there is a dystopian vision of lawless bureaucrats challenged by their victims and checked by a heroic judiciary. Perhaps the truth is somewhere in between. Note, though: The federal judiciary changes gradually with every president’s appointments, and we’ve had a pretty regular alternation of parties in the White House for decades. But in executive agencies, the high-level agency staff turns over immediately. (Even in multi-member independent commissions like the FTC, party control can change quickly when a president of an opposing party takes over — perhaps with the first presidential appointment.)
President Trump’s agency appointees from 2017–21 may be running agencies again in 2025, or perhaps it’ll be President Vance’s or DeSantis’s appointees in 2029. Anyone who broke out in a cold sweat while reading that last sentence may yet come to appreciate a regime that takes agencies out of the driver’s seat of interpreting their own statutes, and may come to thank the Trump-appointed Justices who made it happen.
As they say, Read the Whole Thing.
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