Yes, Gorsuch Matters II (or, Why an Unreliable Vote for Chevron is a Vote Against Chevron)

In my last post, I argued that Gorsuch matters because there are undeniably four votes on the Court, not counting would-be Chevron overrulers, to make Chevron a permissive deference regime - i.e., one where judges decide, as to any particular notice-and-comment rule or formal adjudication interpreting an ambiguous statute, whether Congress really meant to delegate interpretive authority on the ambiguity at issue.  I surmised that Gorsuch would be the fifth, and that that might very well spell the end of Chevron.  What would be left of it would be a zombie "Chevron" where judges would be free to decline to apply it for self-serving reasons, i.e., wishing to arrogate themselves the power to decide a particular question, or opt to apply it for self-serving reasons, i.e., not having much interest in doing the legwork of deciding a particularly technical question.  And whatever the Court might itself do in particular cases, zombie Chevron would free lower courts to do whatever they wanted to do.

Since that post, I've seen arguments that Gorsuch wouldn't change the Court's deference balance much because there aren't five votes against Chevron - Breyer "loves" agencies, Kennedy isn't a "reliable" vote against Chevron, and Alito doesn't have strong views (but see his recent remarks at the Claremont Institute). Unfortunately, this misses the point entirely.  Deference some of the time to the agencies one loves or begrudgingly tolerates amounts to Chevron none of the time, because Chevron just is the rule that if an agency construes an ambiguous statute by a sufficiently formal means, it's getting deference to its reasonable interpretation.  Nor is this a merely semantic point about what "Chevron" means, because besides the consequences of the Court's denying deference to the agencies it doesn't love in a few big cases, the consequences of freeing the D.C. Circuit and the other lower courts to withhold deference from the agencies they don't love, or don't think are up to the task of resolving certain questions, would be massive.

I have been fortunate enough to live my whole life under a mandatory deference doctrine, but some people reading this blog may be old enough to remember what times were like before Chevron, or curious enough to look a bit beyond Skidmore, which the Court likes to talk about now as the primary alternate deference regime but which wasn't, in pre-Chevron years, the watchword it's since become.  For those of you who don't know what pre-Chevron deference doctrine was like, this, as best as I can understand it, is how it worked.  

Contrary to popular belief, there was lots of deference to agency interpretation before Chevron; there just wasn't any rule about when agencies got it.  In 1985, a year after Chevron was decided and before its importance became apparent, Colin Diver wrote an article in the Penn Law Review entitled "Statutory Interpretation in the Administrative State."  One footnote in that very fine article has probably been cited more than everything else in it combined; that footnote helpfully cobbled together a "partial list" of ten factors the Court had considered in the prior fifty years when deciding "whether to grant deference."  The factors included agency expertise, longstanding application of an agency's interpretation, agency consistency, importance of the statutory question, contemporaneity of the agency interpretation with the statute's enactment, congressional awareness of the interpretation, and many more.  (If these factors sound vaguely familiar to you, there's a reason; at least one member of the Court still believes they're controlling.)  Unsurprisingly, Diver found no consistency in how the Court applied these factors.

Diver was not alone in finding pre-Chevron deference doctrine a mess.  Judge Henry Friendly, probably the greatest doctrinalist judge of the twentieth century, couldn't understand the Court's deference doctrine.  Concurring with the leading administrative-law scholar of his day, Judge Friendly wrote in 1976 that "[w]e think it is time to recognize, in line with Professor Kenneth Culp Davis' brilliant discussion . . . that there are two lines of Supreme Court decisions on this subject which are analytically in conflict, with the result that a court of appeals must choose the one it deems more appropriate for the case at hand."  Friendly found numerous cases that called for "great deference," but also found "an impressive body of law sanctioning free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term," and couldn't figure out a discernible rule distinguishing the two.  

The incoherence of the Court's pre-Chevron deference doctrine was unavoidable.  A doctrine under which courts sought to decide on a provision-by-provision basis whether Congress intended for deference to agencies couldn't help but be arbitrary and unpredictable, as there simply is no judicially discoverable evidence of whether Congress intended agencies to receive deference on one provision or another.  Congress certainly doesn't say or hint at its intentions on the matter, and what remains is guesswork about intentions that don't exist (and arguably wouldn't matter if they existed anyway), or, more realistically, judicial preferences masked as intentionalist guesswork.

When Chevron was decided in 1984, Justice Scalia, Judge Gorsuch's would-be predecessor, hailed it in his inimitable way as replacing "statute-by-statute evaluation (which was surely a font of uncertainty and litigation) with an across-the-board presumption that, in the case of ambiguity, agency discretion is meant."  He acknowledged, of course, that Congress probably doesn't intend for agency discretion in all cases of ambiguity, or even "think about the matter at all," but argued that Congress's inattention to the matter was all the more reason for a fictitious across-the-board presumption rather than a "wild goose chase" for "the 'genuine' legislative intent" on deference.  And he suggested that Chevron's presumption was more likely accurate than a doctrine under which Congress was essentially presumed to have left all the questions courts were particularly interested in deciding to courts.

Of course, Chevron wasn't universally embraced; some judges lamented Chevron's abandonment of the old multi-factor doctrine.  Chief among these was future Justice Breyer, who in 1986 wrote an article in the Administrative Law Review where he argued that judges should still be in the business of deciding whether Congress delegated an agency the power to "decide the relevant question of law," and should consider, in making that decision: (a) expertise, (b) interstitiality vs. importance, (c) generally ask whether the court or agency was more likely to get the question right, (d) consider linguistic imprecision, (e) "the extent to which the answer to the legal question will clarify, illuminate or stabilize a broad area of the law," (f) whether the court "trusted" the agency or not (!!), and (g), "of course," "any tangible evidence of congressional intent," including, for example, legislative history.  Justice Breyer vehemently protested, in his mild-mannered way, any reading of Chevron that would abrogate this fine-tuned approach.

Then-Judge Breyer initially lost the judicial debate with his peers on the D.C. Circuit, and ultimately with the Supreme Court, over how to read Chevron.  But he never gave up.  In 2002, after the Court held in Mead that rules issued outside of notice-and-comment weren't automatically entitled to Chevron deference, unlike notice-and-comment rules, which were, Justice Breyer wrote for the Court that his set of factors controlled whether a non-notice-and-comment rule got Chevron deference.  A mere interpretive rule, he held, could receive deference if it concerned an interstitial question, the issuing agency had expertise, the question was important to the administration of the statute, the statute complex, and the agency's interpretation longstanding.  

None of this mattered much because agencies could always get Chevron deference without muddling through Justice Breyer's multi-factor morass so long as they went through notice-and-comment or decided matters by formal adjudication.  But despite his love for agencies (at least twice a term, Justice Breyer will bring up "the Federal Power Commission of blessed memory" at oral argument), Justice Breyer has never quit suggesting that there really are no safe harbors under Mead for notice-and-comment rulemaking or formal adjudication, and that his factors ought to apply whenever a court decides whether to turn Chevron on or off.  Meanwhile, three more Justices - the Chief, Kennedy, and Alito - have recently joined an opinion that claims that even when agencies issue notice-and-comment rules, courts still must decide whether to apply Chevron "specific statutory ambiguity" by specific statutory ambiguity, with no guidance whatsoever on how to do it; that opinion's author subsequently wrote an opinion carving out an exception to Chevron for questions of "deep economic and political significance" (arguably an apt way to decide the question in Chevron itself, or, e.g., the Chevron-deferred-to Reagan administration's ban on federal funding for abortion counseling in Rust v. Sullivan), with no guidance whatsoever on what a question of deep economic and political significance looks like.

In sum, Breyer, Kennedy, Alito, and even the Chief Justice may not be "reliable" votes against deference.  No one really is; all judges since the New Deal have deferred to agencies in some cases.  Justice Breyer, until recently the Court's most vehement opponent of Chevron as doctrine, likes deferring to agencies a lot.  What they undeniably are, though, is reliable votes for the principle that deference to formal agency interpretations of ambiguous statutes isn't  mandatory, as Chevron held it was, but instead should be meted out case by case, statute by statute, ambiguity by ambiguity.  That is precisely the state of affairs that Chevron replaced, and I strongly suspect that Judge Gorsuch would join them in taking us back there.