The Plan to Incapacitate the Federal Government

Last Wednesday, over the course of three and a half hours of arguments, the conservative and liberal justices on the U.S. Supreme Court jousted over whether to overrule a 40-year-old case called Chevron v. Natural Resources Defense Council.

The Chevron case is famous among lawyers—it’s among the most cited cases of all time—because it established the principle that the courts should defer to federal agencies when they interpret the law in the course of carrying out their duties. That may not sound like a big deal, but it is. Chevron shields the executive branch from overly intrusive court review, giving it the flexibility to do its work.

But the case is under threat. Conservative justices on the Supreme Court want to dismantle Chevron, believing that deference is improper because courts—not federal agencies—ought to say what the law is. They may have the votes to scrap the case outright; if not, they will almost certainly narrow its scope.

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Naturally, much of the exhausting argument probed what a world without Chevron would look like. The answer is that nobody really knows. As the argument wore on, I came to think that Chevron’s opponents may not much care. Abandoning Chevron would make it even harder for agencies to predict how their decisions will fare in court. As a hedge against losing, they will do less, and what they do will be lawyered to the hilt. Agencies will be balkier, slower, and less effective. And that may be exactly what Chevron’s opponents hope.

Here’s the basic problem. When it passes a law, Congress usually gives implementation authority to some federal agency or other. But Congress can’t anticipate every eventuality, nor does it have the wherewithal to address every difficult question that may arise. Often, Congress chooses to delegate in broad strokes to the executive branch, which can move with relative dispatch and greater expertise.

This means that agencies have to answer lots of tough questions. The Department of Transportation, for example, is supposed to require car manufacturers to adopt “practicable” safety standards “that meet the need for motor safety.” But how safe is safe enough? How do you trade off dollars and lives? The statute doesn’t say.

Similarly, the Food and Drug Administration can approve a drug for sale only if “adequate and well-controlled investigations” offer “substantial evidence” of the drug’s effectiveness. How substantial does the evidence have to be? What does it mean for a study to be well controlled? Again, the statute says little.

Or take the Federal Communications Commission, which must closely regulate all “telecommunications services” but not “information-service providers.” What is broadband? Is it more like a telecom service or an ISP? Again, just reading the law to find an answer won’t much help.

Virtually every law of any importance includes delegations that are similarly vague. These delegations give agencies a lot of discretion to make government policy—as when the Transportation Department required airbags in cars, the FDA approved a questionable Alzheimer’s drug, and the FCC waffled on how to classify broadband.

Obviously, these were policy choices. They demanded that the agency in question collect information, evaluate trade-offs, and make a judgment call. Less obviously, these policy choices were also matters of legal interpretation. Airbags are “practicable,” the Alzheimer’s studies were “well-controlled,” and broadband is (or isn’t) a “telecommunications service.” To decide on the appropriate policy, the agency had to interpret the law.

That’s where Chevron comes in. It tells the courts to defer to agencies not only on questions of policy, but also on questions of law. That gives agencies some confidence that their decisions won’t be undone in the courts, even when those decisions involve legal interpretation.

At the same time, Chevron doesn’t give agencies carte blanche. Courts still review whether the agency’s interpretation of the law is “reasonable.” Judges take that responsibility seriously: Agencies routinely lose when they stray too far from the letter of the law.

Even so, Chevron makes many conservative jurists queasy. For Justice Neil Gorsuch, who’s leading the charge against the case, Chevron prompts judges to “outsource” their responsibilities: “Rather than say what the law is, we tell those who come before us to go ask a bureaucrat.” For him and at least some of his colleagues, getting rid of Chevron would put legal interpretation back where it belongs—in the courts.

It’s fine and good to say that agencies should do policy and courts should do law. But what if an agency decision involves both, as often happens? During oral argument last week, even some of the Supreme Court’s Chevron skeptics recognized the problem. “Let’s suppose the statute says the Department of Transportation will set length limits for trucks that are reasonable,” asked Chief Justice John Roberts. “Is that a legal question for the court, or is that a policy question for the agency?”

But it was Justice Ketanji Brown Jackson, a Chevron defender, who was sharpest on this question. In grilling one of the lawyers attacking Chevron, she said: “I’ve heard you say several times that you agree that judges should not be doing policy, they should be doing law … My concern is that it’s actually not as easy as it seems to distinguish between the two.”

No one had a good answer to this concern—not the advocates and not the justices who oppose Chevron. And I’m skeptical that the Supreme Court can come up with a clear test to separate law from policy. Some agency decisions may seem more clearly about the law; others may seem like policy calls. But how you characterize any given decision is a matter of degree and emphasis, not an ontological fact.

In a world without Chevron, agencies will be hard-pressed to know how deferential the courts will be in reviewing decisions that mix policy and law. “If I’m an agency and I’m trying to be responsible, how is this going to work as a practical matter?” Jackson asked. “Isn’t it sort of impractical and chaotic to have a world in which every undefined term in a statute is subject to litigation, if you’re trying to govern?”

Courts like to think that judicial review trains agencies to do better in the future, much as you might use firm discipline to train a dog. Tell agencies that they’ve behaved arbitrarily, and they’ll behave more reasonably in the future. Tell them they’ve skipped a procedural step, they’ll make sure to cross their t’s next time. Tell them they read the statute wrong, they’ll stick closer to the law.

The lesson that agencies actually learn tends to be very different. They lose so regularly, and for such a wild and whirling array of reasons, that the outcome of a lawsuit, from their perspective, looks pretty random. No matter how many pages they spend defending their rule or how carefully they conduct their legal analysis, they may still lose, and often for reasons that strike experts in the field as idiosyncratic or baffling. You don’t correct a dog’s behavior if you smack it at random intervals. You just make it cower in the corner.

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So, too, with agencies. In the face of uncertainty, they survive by channeling their energies into activities that won’t provoke litigation—which is to say, activities that won’t ruffle anyone’s feathers. If agencies feel they must do something that will draw the courts’ attention, they devote scads of time and money to compiling the strongest possible record, even if doing so isn’t a good use of scarce resources. Hypercautious agency lawyers gain influence at the expense of policy experts. Agencies grow even more skittish and defensive—they become, in a word, ineffective.

Replacing Chevron with some amorphous test about which agency policy decisions are “really” legal questions will only make matters worse. How much worse is a matter of debate. Some legal experts think that overturning Chevron will hamstring the administrative state. Others believe the effects will be muted because courts will still defer, if perhaps a little less often.

Wherever the truth lies, ditching Chevron is only one part of the conservative legal movement’s ever more successful campaign to intensify judicial controls over the administrative state. In recent years, the justices have produced a new “major questions doctrine” to restrain agencies that do things of great economic or political significance. They have toyed with telling Congress that some of its delegations are so broad as to be unconstitutional. They are exploring new limits on the types of cases that agencies can resolve. And they seem to have upped the intensity with which they review whether agency decisions are “arbitrary.”

You could be forgiven for thinking that conservatives want a cowering state. And they have their reasons. Like any human institution, agencies sometimes behave badly. They regulate when sometimes they shouldn’t. They create endless red tape. They move slowly. They can be wildly out of touch with public sentiment. It’s tempting to want to cut them down to size.

But sowing uncertainty in the law won’t make agencies perform better. It will just make government more brittle. The United States faces enormous challenges in the 21st century, including climate change, a rising China, and a housing shortage. We need effective government to meet those challenges. The Supreme Court is not helping.