The Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inconsistent with another group of the Court’s opinions, which the authors describe as the Court’s presidentialism.
Their analysis is incisive. While addressed to a Court that has a rather cavalier attitude toward doctrinal coherence, the article’s convincing empirical evidence may encourage the Justices to be more thoughtful as they move into the post-Chevron phase of administrative law. In any event, it will certainly provide observers with insights for continued criticism of the Court, and perhaps provide this Court’s successor with guidance for repairing the damage.
Roberts Court presidentialism, according to the authors, is the set of decisions insisting that the President, as the one official elected by the entire populace, should have full power to control federal agencies. This nascent doctrine, related to the unitary executive theory fashioned by conservative commentators, may soon produce another cataclysm in administrative law, a reversal of Humphrey’s Executor and the invalidation of agency independence.
In the meantime, it has led the Court, in decisions such as Seila Law v. CFPB and Free Enterprise Fund v. PCOAB, to strike down legislation that creates innovative agency structures. The problem with these innovations, according to the Court, is that they shield the agency in question from direct presidential control through the appointment and removal process, and thus from democratic accountability. The authors point out, however, that this rationale conflicts with the Court’s recently fashioned doctrine that denies Chevron deference to issues deemed to be “major questions.” Such questions, by the Court’s own definition, are matters of “extraordinary” public policy significance, questions that Congress intends to make for itself rather than leaving those decisions to administrative agencies.
The contradiction that Professors Short and Shugerman discern is that the President is part of the same policymaking process that the Court is so anxious to protect and empower. This is true as a juridical matter for at least two reasons. First, the President can veto congressional enactments that authorize administrative agencies to act. (It was the Court’s formalist solicitude for this authority that led it to strike down nearly 200 federal statutes in INS v Chadha.) Second, the President is the hierarchical superior of executive agencies and appoints new leaders of all agencies (with the Court’s formalist solicitude for this authority leading to Seila Law and Free Enterprise Fund). The same observation is also true as a pragmatic matter because the President almost always plays a major role in the formulation of extraordinarily significant public policies.
The authors document the extent of the President’s role in establishing the administrative policies that the Roberts Court invalidated in Biden v. Nebraska (student loan forgiveness), West Virginia v. EPA (control of greenhouse gas emission), National Federation of Business v. OSHA (protection against COVID transmission in the workplace), Alabama Assoc. of Realtors v. DHA (moratorium on housing evictions during the COVID crisis), King v. Burwell (health insurance for the previously uninsured), Gonzales v. Oregon (Attorney General’s guidance on assisted suicide) and FDA. v. Brown & Williamson (health-based regulation of tobacco products). In each of these cases, as the authors point out, the Court depicted the administrative actions it struck down as the work of “unruly and unaccountable agencies overreaching beyond democratic control.” (P. 4.) That depiction, however, is exactly the opposite of what actually occurred.
Professors Short and Shugerman conclude by recommending that the Court resolve the conflict they have so effectively demonstrated by modifying one of the two conflicting doctrines. It might be said in response that the effort is pointless because the Court is not inclined to listen. The two doctrines, however they conflict on logical or legal grounds, are unified by the Court’s ideological hostility to the administrative state. It opposes innovative solutions to structural problems in modern government and substantive solutions to policy problems confronting society simply because both sets of solutions are carried out through administrative agencies. In this, its decisions resemble those of the Lochner Court, which struck down progressive legislation by the states on substantive due process grounds and progressive legislation by the federal government on Commerce Clause grounds because it disliked progressive legislation, not because of any legal or conceptual connection between the two doctrines. But Professors Short and Shugerman can hardly be faulted for giving the Court the benefit of the doubt and assuming that will make some effort to at least modulate its doctrines to achieve a measure of conceptual coherence.
Even if the Court does not resolve the problem, there is a further value to this highly perceptive article. It illuminates a feature of the Chevron doctrine that hopefully will survive whatever the Court decides to do to the doctrine itself. Chevron was decided in the Term following the Court’s momentous decision in Motor Vehicle Manufacturers Ass’n v. State Farm. In addition to holding that the APA arbitrary and capricious standard applied to rescissions of regulations, developing a definitive test for applying that standard, and holding that the National Highway Traffic and Safety Administration had violated the standard in rescinding its regulation regarding for airbag—all unanimously—the Court decided that the agency had also violated the standard by rescinding the regulation regarding automatic seat belts, but in this case by a 5-4 margin.
Justice Rehnquist, in dissent, pointed out that the agency should be permitted to change its position on the basis of presidential policies that the voters had endorsed, in this case the deregulatory policies that Ronald Reagan had advanced en route to his overwhelming electoral victory. The Chevron decision is built on this position. Justice Stevens’ majority opinion pointed out that the objections to the regulation at issue—another Reagan deregulatory effort—are “policy arguments . . . more properly addressed to legislators or administrators, not to judges.” In other words, Chevron does not simply favor agency interpretation over judicial interpretation, but rather is designed to validate the democratic policymaking process in its entirety, as formulated by agencies, by Congress, and—as Professors Short and Shugerman point out—by the President as well.
Through the major questions doctrine that seems to be leading to a reversal of Chevron, the Court has impeded efforts by that policy process to address some of the most serious problems facing our nation, such as climate change, inadequate health care, epidemic disease, and the sale of unhealthful substances. As a result of these decisions, many Americans will get sick or die. Perhaps Professor Short and Shugerman’s article will communicate this aspect of Chevron to the Court when its reconsiders the doctrine.
