The Politics of Selecting Chevron Deference

23 Pages Posted: 20 Aug 2018

See all articles by Kent H. Barnett

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

Multiple version iconThere are 2 versions of this paper

Date Written: September 2018

Abstract

In this article, 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—policy‐making 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. However, 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.

Suggested Citation

Barnett, Kent Harris and Boyd, Christina L. and Walker, Christopher Jay, The Politics of Selecting Chevron Deference (September 2018). Journal of Empirical Legal Studies, Vol. 15, Issue 3, pp. 597-619, 2018. Available at SSRN: https://ssrn.com/abstract=3233237 or http://dx.doi.org/10.1111/jels.12187

Kent Harris Barnett

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

Christina L. Boyd (Contact Author)

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

Athens, GA 30602-6254
United States

Christopher Jay Walker

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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