The Politics of Selecting Chevron Deference

27 Pages Posted: 13 Jun 2017 Last revised: 17 Feb 2018

Kent H. Barnett

University of Georgia School of Law

Christina L. Boyd

University of Georgia - School of Public and International Affairs

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: June 10, 2017

Abstract

In this paper, we examine an important threshold question in judicial behavior and administrative law: when do federal circuit courts decide to use the Chevron deference framework and when do they select a framework that is less deferential to the administrative agency’s statutory interpretation? The question is important because the purpose of Chevron deference is to give agencies — not judges — policymaking space within statutory interpretation. We expect, nonetheless, that whether to invoke the Chevron framework is largely driven by political dynamics, with judges adopting a less deferential standard when their political preferences do not align with the agency’s decision. To provide insight, we analyze circuit-court decisions from 2003 until 2013 that review agency statutory interpretations. Our results — from the largest and most comprehensive database of its kind — provide partial confirmation of our expectations. When courts reviewed liberal agency interpretations, all panels — liberal, moderate, and conservative — were equally likely to apply Chevron. But when reviewing conservative agency interpretations, liberal panels selected the Chevron deference framework significantly less frequently than conservative panels. Contrary to limited prior studies, we find no evidence of “whistleblower” or disciplining effects when judges of different judicial ideologies comprised the panel. Viewed together, our results provide important implications for the current debate on whether to eliminate, narrow, or clarify Chevron’s domain.

Keywords: Administrative Law, Deference, Judicial Review, Chevron, Skidmore

Suggested Citation

Barnett, Kent H. and Boyd, Christina L. and Walker, Christopher J., The Politics of Selecting Chevron Deference (June 10, 2017). Ohio State Public Law Working Paper No. 400; Journal of Empirical Legal Studies, Forthcoming; University of Georgia School of Law Legal Studies Research Paper No. 2017-21; Ohio State Public Law Working Paper No. 400. Available at SSRN: https://ssrn.com/abstract=2984302

Kent Harris Barnett

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

Christina L. Boyd

University of Georgia - School of Public and International Affairs ( email )

Athens, GA 30602-6254
United States

Christopher Jay Walker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-1898 (Phone)

HOME PAGE: http://moritzlaw.osu.edu/faculty/professor/christopher-j-walker/

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