Administrative Law's Political Dynamics

64 Pages Posted: 8 Mar 2018 Last revised: 13 Apr 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: February 28, 2018

Abstract

Over 30 years ago, the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court’s desire to temper administrative law’s political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congress charged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have documented empirically how politics influence circuit-court review of agency statutory interpretations in a post-Chevron world. Among other things, they have reported whistleblower or panel effects, in that ideologically diverse panels are less likely to be influenced by their partisan priors than ideologically uniform panels.

Leveraging the most comprehensive dataset to date on Chevron deference in the circuit courts (more than 1,600 cases over 11 years), this Article explores administrative law’s political dynamics. Contrary to prior, more limited studies, we find that legal doctrine (i.e., Chevron deference) has a powerful constraining effect on partisanship in judicial decisionmaking. To be sure, we still find some statistically significant results as to partisan influence. But the overall picture provides compelling evidence that the Chevron Court’s objective to reduce partisan judicial decisionmaking has been quite effective. Also contrary to prior studies, we find no statistically significant whistleblower or panel effects. These findings have important implications for the current debate over the future of Chevron deference. Our findings identify a significant, overlooked cost of eliminating or narrowing Chevron deference: such reform could result in partisanship playing a larger role in judicial review of agency statutory interpretations.

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

Suggested Citation

Barnett, Kent Harris and Boyd, Christina L. and Walker, Christopher Jay, Administrative Law's Political Dynamics (February 28, 2018). Vanderbilt Law Review, Vol. 71, 2018 Forthcoming; Ohio State Public Law Working Paper No. 439. Available at SSRN: https://ssrn.com/abstract=3132045

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://www.chrisjwalker.com

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