Chevron's Political Domain: W(h)ither Step Three?

21 Pages Posted: 16 Aug 2018 Last revised: 30 Jun 2019

See all articles by Justin (Gus) Hurwitz

Justin (Gus) Hurwitz

University of Nebraska at Lincoln - College of Law; International Center for Law & Economics (ICLE)

Date Written: August 2, 2018

Abstract

This essay takes prior work on Chevron in a new direction, arguing that broad deference doctrines have the largely unrecognized but particularly pernicious effect of increasing the politicization of the legislative process. Not only do Chevron and related deference doctrines affect how legislators go about the business of the Congress, but they change legislators’ understanding of what the business of Congress is. Untethered from the need to actively govern agencies that have been delegated sufficiently broad authority to keep the basic ship of state afloat, legislators refocus their attention on maintaining power for themselves and their political party. In this light, in the thirty or so years since Chevron became the law of the land, our country’s governing institutions have grown increasingly politicized: and at the risk of overstating this essay’s claim, perhaps Chevron itself, and the related embrace of broad judicial deference to the administrative state of which it is part, is in some measure responsible for our current sorry political state.

This is an undesirable outcome. And, as framed here, it is not only unfortunate but also problematic on separation of powers grounds. Conversely stated, if this essay’s argument holds, separation of powers principles may offer some remedy to the harms that Chevron has worked upon to our constitutional republic.

The intuition explored in this essay is that Chevron dramatically exacerbates Congress’s worst tendencies, encouraging Congress to push its legislative functions to the executive and to do so in a way that increases the politicization and polarization of American law and policy. This gives rise to a fear that Chevron effectively allows, and indeed encourages, Congress to abdicate its role as the most politically-accountable branch by deferring politically difficult questions to agencies. This argument is, at core, based in separation of powers concerns. While separation of powers concerns generally focus on preventing one branch of government from encroaching into the realm of the other branches, this essay offers a twist, arguing that Chevron’s demurral to agency interpretations encourages a Congressional abdication of its Constitutional responsibilities – and that such deference is therefore an abdication of the judiciary’s Constitutional role as a check on the problematic conduct of its sister branches.

Suggested Citation

Hurwitz, Justin (Gus), Chevron's Political Domain: W(h)ither Step Three? (August 2, 2018). DePaul Law Review, Vol. 68, No. 3, 2019. Available at SSRN: https://ssrn.com/abstract=3225524 or http://dx.doi.org/10.2139/ssrn.3225524

Justin (Gus) Hurwitz (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

International Center for Law & Economics (ICLE) ( email )

5005 SW Meadows Rd.
Suite 300
Lake Oswego, OR 97035
United States

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