Saturday, November 25, 2017

Excellent Article on the Necessity of Chevron or Something Like in the Administrative State (11/25/17)

A significant topic in my Federal Tax Procedure book and in many tax procedure books and classes is the subject of Chevron deference.  Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).  Chevron deference has some influential critics -- including Justices Thomas and Gorsuch and a number of others, including legislators who rail against the administrative state. 

An excellent article arguing that Chevron or something like it is necessary for the administrative state -- Nicholas R. Bednar & Kristin E. Hickman, Chevron's Inevitability (2017). 85 Geo. Wash. L. Rev. 1392 (2017) (available on SSRN here). Kristin Hickman is a leading authority on Chevron.  The abstract is
For over thirty years, Chevron deference has been the target of criticism. Now, some judges and legislators are calling for an end to Chevron, and legal scholars are heralding the doctrine’s retreat. Chevron may be evolving, as common law often does. But claims that Chevron is in decline are overblown, and efforts to overturn Chevron in any meaningful sense are misdirected. Chevron-style deference is inevitable in the modern administrative state. The real “problem” — to the extent one sees it as such — is not Chevron but rather unhappiness with the natural consequences of congressional reliance on agencies to resolve major policy issues.
Although the whole article is worth reading, I found the following excerpt in the introduction helpful:
Finally, predictions of (or hopes for) Chevron’s pending demise fail to take into account that Chevron deference, or something much like it, is a necessary consequence of and corollary to Congress’s longstanding habit of relying on agencies to exercise substantial policy-making discretion to resolve statutory details. As administrative law’s best-known doctrine, Chevron has become a convenient scapegoat or bogeyman for those who are unhappy with the administrative state or judicial review of agency action. But unless Congress chooses to assume substantially more responsibility for making policy choices itself or the courts decide to seriously reinvigorate the nondelegation doctrine—neither of which seems remotely likely—at least some variant of Chevron deference will be essential to guide and assist courts from intruding too deeply into a policy sphere for which they are ill-suited.
And this excerpt from the conclusion:
Reports of Chevron’s demise are greatly exaggerated, and efforts to overturn Chevron aim at the wrong target. Certainly, Chevron is a highly imperfect doctrine. The opinion itself is confusing. Courts are inconsistent when they apply it, adding to the confusion. Legitimate questions abound regarding Chevron’s proper scope and operation. Undoubtedly, there remains room for improvement and clarification. 
Yet, casting Chevron as administrative law’s bogeyman has always been a bit overwrought. Chevron undoubtedly is not what the Framers had in mind, but then again, neither is the modern regulatory state. So long as agency officials possess the authority to  make major policy decisions, Chevron—or something much like it—will survive. Congress will continue delegating, so courts will continue deferring in some number of cases. To the extent that courts and commentators want to curtail the administrative state, they should focus their efforts on rolling back congressional delegations of policymaking discretion to agency officials rather than overturning Chevron. 
In short, Chevron’s basic premises represent a reasonable judicial response to the government that we actually have and the world in which we actually live. To paraphrase Winston Churchill, Chevron is the worst standard of review, except for all the others.475 
For an excellent discussion of the Article, see Adrian Vermeule, Chevron as a Legal Framework, Jotwell (Oct. 24, 2017), here.  [Note that Vermeule lists Hickman first, but the article lists Bednar first; Hickman is the more recognized scholar]

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