The Politics of Deference

57 Pages Posted: 22 Jul 2021

See all articles by Gregory Elinson

Gregory Elinson

Harvard University - Harvard Law School

Jonathan Gould

University of California, Berkeley - School of Law

Date Written: July 19, 2021

Abstract

Like so much else in our present politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which courts defer to agencies’ reasonable interpretations of ambiguous statutory language. Given both sides’ increasingly entrenched positions, it is easy to think that conservatives have always warned of the dangers of deference, while liberals have always defended its virtues. Not so. This Article tells the political history of deference for the first time, using previously untapped primary sources including presidential and congressional archives, statements by interest groups, and partisan media sources. It recounts how the politics of deference have varied over time, even though the issue is often framed in terms that resist evolutionary analysis. As the administrative state grew in the 1970s, conservatives in Congress sought to rein in deference, while liberals defended it. These positions reversed in the 1980s, as the Reagan Administration relied on flexible readings of statutes in service of its deregulatory efforts, including in the Chevron case itself. After a period of political détente, the 2010s witnessed a resurgence of conservative opposition and liberal support for Chevron, driven largely by the ascendance of libertarian interests in the Republican Party and the central role of administrative policymaking to contemporary Democratic Party agendas.

The Article then develops a framework for understanding the shifting politics of deference. It argues that the politics of deference are the politics of regulation: for nearly a half-century, partisans and interest groups have viewed doctrinal debates as inexorably tied to interests in policy outcomes. Positions about Chevron have varied based on which party controls the presidency and the ideological makeup of the federal courts. But the parties are also asymmetrically reliant on the administrative state, and thus on judicial deference. Liberals depend on deference to advance their regulatory goals in the face of an often-gridlocked Congress, while conservatives have many paths to accomplishing their deregulatory ends. The conservative turn against the so-called “deep state” and Chevron’s non-application in areas where conservatives most favor deference (such as national security) further exacerbate the partisan split on the doctrine. And Chevron has become a rhetorical cudgel in broader partisan debates about the legality and legitimacy of the administrative state as a whole. Unless these dynamics change, Chevron deference will continue to have a political valence. And so long as the doctrine is understood to create winners and losers, partisans and interest groups will rightly see high stakes in ensuring its survival or hastening its demise.

Keywords: Administrative Law, Bumpers Amendment, Chevron, Deference, Deregulation, Regulation, Regulatory Politics, Regulatory Reform

Suggested Citation

Elinson, Gregory and Gould, Jonathan, The Politics of Deference (July 19, 2021). Vanderbilt Law Review, Vol. 75, Forthcoming 2022, Available at SSRN: https://ssrn.com/abstract=3889828 or http://dx.doi.org/10.2139/ssrn.3889828

Gregory Elinson

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Jonathan Gould (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: http://https://www.law.berkeley.edu/our-faculty/faculty-profiles/jonathan-gould/

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