"Administrative Law's Political Dynamics"

Michigan Law Authors
Areas of Interest
Publish Date
2018
Publication
Vanderbilt Law Review
Publication Type
Journal Article
Abstract

Over thirty years ago, the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. commanded courts to uphold federal agency interpretations of ambiguous statutes as long as those interpretations are reasonable. This Chevron deference doctrine was based in part on the Court’s desire to temper administrative law’s political dynamics by vesting federal agencies, not courts, with primary authority to make policy judgments about ambiguous laws Congress charged the agencies to administer. Despite this express objective, scholars such as Frank Cross, Emerson Tiller, and Cass Sunstein have empirically documented how politics influence circuit court review of agency statutory interpretations in a post-Chevron world. Among other things, they have reported whistleblower and panel effects, in that ideologically diverse panels are less likely to be influenced by their partisan priors than ideologically uniform panels.

Leveraging the most comprehensive dataset to date on Chevron deference in the circuit courts (more than 1,600 cases over eleven years), this Article explores administrative law’s political dynamics. Contrary to prior, more limited studies, we find that legal doctrine (i.e., Chevron deference) has a powerful constraining effect on partisanship in judicial decision making. To be sure, we still find some statistically significant results as to partisan influence. But the overall picture provides compelling evidence that the Chevron Court’s objective to reduce partisan judicial decision making has been quite effective. Also contrary to prior studies, we find no statistically significant whistleblower or panel effects. These findings have important implications for the current debate over the future of Chevron deference. Our findings identify a significant, overlooked cost of eliminating or narrowing Chevron deference: such reform could result in partisanship playing a larger role in judicial review of agency statutory interpretations.

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