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«CHEVRON AT THE ROBERTS COURT: STILL FAILING AFTER ALL THESE YEARS Jack M. Beermann* INTRODUCTION This Essay looks at how Chevron deference1 has fared ...»

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CHEVRON AT THE ROBERTS COURT:

STILL FAILING AFTER ALL THESE YEARS

Jack M. Beermann*

INTRODUCTION

This Essay looks at how Chevron deference1 has fared at the U.S.

Supreme Court since John G. Roberts became Chief Justice.2 As followers

of U.S. administrative law know, the Court‘s 1984 Chevron decision

famously created an apparently new two-step process for reviewing federal agency decisions interpreting statutes they administer. Since then, the Chevron decision has been the most-cited Supreme Court administrative law decision, and the Chevron doctrine has spawned legions of law review articles analyzing its numerous twists and turns. This Essay looks at Chevron deference at the Roberts Court from three distinct angles. First, the Essay examines the voting records of individual Justices in cases citing Chevron to illuminate each Justice‘s commitment to deference to agency statutory construction. Second, the Essay qualitatively examines a select sample of opinions citing Chevron, to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the Essay looks closely at how the Roberts Court has handled one of the most vexing issues under Chevron, namely the boundary between Chevron deference and judicial review under other standards of judicial review such as the arbitrary or capricious standard that governs all reviewable agency action.

To the first point, in an earlier article,3 I presented data on Justices‘ voting records. In that article, I looked at all of the Supreme Court decisions during Chief Justice Roberts‘ first four Terms in which Chevron was applied by the majority or cited in a dissent.4 What I found was that the Court generally split along familiar ideological lines, with liberals * Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law.

Thanks to Daniel Storms, Boston University School of Law Class of 2015, for excellent research assistance.

1. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

2. This Essay is part of a larger symposium entitled Chevron at 30: Looking Back and Looking Forward. For an overview of the symposium, see Peter M. Shane & Christopher J.

Walker, Foreword: Chevron at 30: Looking Back and Looking Forward, 83 FORDHAM L.

REV. 475 (2014).

3. See Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 CONN. L. REV. 779, 839–40 (2010).

4. Id. at 839 n.226.

731 732 FORDHAM LAW REVIEW [Vol. 83 deferring to liberal agency interpretations and conservatives deferring to conservative agency interpretations.5 During that period, when there was disagreement on the Court, ―there were six decisions by the conservative wing against deference, three decisions by the liberal wing against deference, two decisions by the conservative wing in favor of deference and four decisions by the liberal wing in favor of deference.‖6 Chief Justice Roberts and Justices Scalia and Alito voted contrary to the liberal/conservative divide most often, with Justice Scalia sometimes joining liberals to vote against deference and Justices Roberts and Alito sometimes joining liberals in favor of deference.7 ―Justice Scalia‘s eleven votes against deference was the highest number of votes among the Justices against deference. Justice Alito voted most often in favor of deference with ten votes.‖8 Chief Justice Roberts voted with liberals twice, bringing his total in the period to eight votes in favor of deference.9 The updated data presented below confirms this general pattern.10 In recent years, however, Justice Alito has been deferring less often while, perhaps due to the addition of two liberal Justices appointed by the current President, the Court seems to be deferring to agency decisions in a higher proportion of cases.11 To the second point, a perusal of decisions citing Chevron shows that the Roberts Court has not been more successful than the Rehnquist Court in bringing a measure of coherence to the Chevron doctrine. The Court has not increased the clarity of the key elements of the Chevron doctrine. The Court continues to ignore Chevron in cases in which, on its terms, it ought to be applied or at least considered, and it has not increased the certainty of the Mead doctrine,12 referred to as Chevron Step Zero, which maps the boundary between Chevron and other forms of deference.13 To the third point, the Roberts Court has failed miserably to clarify the boundary between Chevron and other standards of review such as arbitrary or capricious review. On the positive side, under Chief Justice Roberts‘s leadership, the Court has rejected arguments for exceptionalism and applied Chevron in at least one new context in which it had not previously been applied.14 It has also extended Chevron deference to statutory issues implicating agency jurisdiction, although in this case Chief Justice Roberts

5. Id.

6. See id. at 838–39 n.226.

7. See id. at 838–39 nn.226–27.

8. See id. at 839 n.227.

9. Id. at 839.

10. See infra note 35 and accompanying text.





11. See infra note 40 (detailing Justice Alito‘s five votes against agencies since 2012);

infra notes 46–47 and accompanying text (discussing the voting records of Justices Kagan and Sotomayor).

12. United States v. Mead Corp., 533 U.S. 218 (2001).

13. See Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 191 (2006) (defining Chevron ―Step Zero‖ as ―the initial inquiry into whether the Chevron framework applies at all‖).

14. See Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct. 704 (2011) (applying Chevron deference to Treasury regulations).

2014] CHEVRON AT THE ROBERTS COURT 733 dissented.15 By and large, however, the uncertainty over Chevron‘s coverage has not been reduced. When asked, the Court was unable to articulate a boundary between Chevron deference and arbitrary or capricious review.16 Further, the Court‘s discussion of the relationship between Chevron Step Two and arbitrary or capricious review has been confusing, and leads to uncertainty over whether Chevron is about deference to agency interpretation or deference to agency policymaking.17 Finally, there are cases in which Chevron could have been employed but were instead decided without any explanation under another standard of review such as the arbitrary or capricious standard.18 In short, there is no way to know in advance whether a case should be decided under the Chevron doctrine or under the arbitrary or capricious standard specified in the Administrative Procedure Act (APA).19

I. CHEVRON VOTING AT THE ROBERTS COURT

As noted in the introduction, the voting records of the Justices in Chevron cases during the first four Terms of the Roberts Court revealed an interesting pattern. In general, when there was disagreement among the Justices, the voting fell along familiar liberal/conservative patterns, and did not seem to turn on a diversity of views concerning Chevron deference and related doctrines.20 The updated data indicate that this general pattern continues with a couple of important reservations. First, agencies seem to be winning at the Supreme Court more often during the last few years (agencies have prevailed in 9.521 of the thirteen cases decided since the earlier article was published) and slightly fewer than half of the decisions are unanimous (six of thirteen), leaving a very small sample of nonunanimous decisions to analyze.22

15. See City of Arlington v. FCC, 133 S. Ct. 1863, 1872 (2013).

16. See infra notes 84–113 and accompanying text.

17. See infra notes 84–113 and accompanying text.

18. See infra notes 73–83 and accompanying text.

19. 5 U.S.C. §§ 551, 706 (2012).

20. See Beermann, supra note 3, at 838–40. In another contribution to this symposium, James Brudney reviews 730 Supreme Court decisions—pre- and post-Chevron—to evaluate the use of Chevron and Skidmore in the workplace-law context, and his findings illustrate that the Justices‘ substantive views were more important than their views on the deference standards. See James J. Brudney, Chevron and Skidmore in the Workplace: Unhappy Together, 83 FORDHAM L. REV. 497, 520–21 (2014).

21. Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2449 (2014) (employing Chevron analysis to uphold one of two agency interpretations, which explains the fractional total).

22. The nonunanimous decisions citing Chevron during the relevant period are: Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014); EPA v. EME Homer City Generation, LP, 134 S. Ct. 1584 (2014); City of Arlington v. FCC, 133 S. Ct. 1863 (2013); United States v. Home Concrete & Supply, LLC, 132 S. Ct. 1836 (2012); Roberts v. Sea-Land Services, Inc., 132 S. Ct. 1350 (2012); Barber v. Thomas, 560 U.S. 474 (2010). The unanimous decisions citing Chevron are: Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 817 (2013); Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034 (2012); Astrue v. Capato ex rel.

B.N.C., 132 S. Ct. 2021 (2012); Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012); Mayo Foundation for Medical Education & Research v. United States, 131 S. Ct. 704 (2011);

Judulang v. Holder, 132 S. Ct. 476 (2011).

734 FORDHAM LAW REVIEW [Vol. 83 In the nonunanimous decisions citing Chevron since the publication of my prior article, the agency prevailed in 5.523 of the seven decisions.24 The small sample is made even smaller by the fact that one of the decisions was by an eight-to-one vote,25 making it impossible to characterize the decision along the liberal/conservative divide. In the six remaining cases, one has a mixed majority and a dissent composed of three members who often vote as part of the conservative bloc—Chief Justice Roberts and Justices Anthony Kennedy and Samuel Alito.26 Another has a very mixed-up lineup, with the Chief Justice and Justices Scalia, Kennedy, Ginsburg, and Kagan voting with the agency and Justices Thomas, Breyer, Alito, and Sotomayor voting against the agency.27 The other three fell along more familiar liberal/conservative patterns with slight variations. For example, in a 2014 case involving environmental protection, the Court approved a protective interpretation that had been rejected by the D.C. Circuit, with Chief Justice Roberts joining swing Justice Kennedy and generally liberal Justices Ginsburg, Breyer, Sotomayor, and Kagan.28 Justices Scalia and Thomas voted against the agency, and Justice Alito did not participate.29 In the other environmental law case that resulted in a victory for the Environmental Protection Agency (EPA) on one issue and a defeat on the other, liberal Justices Ginsburg, Breyer, Sotomayor, and Kagan would have affirmed the agency on both issues and conservative Justices Thomas and Alito would have rejected the agency‘s decision on both issues.30 Chief Justice Roberts and Justices Scalia and Kennedy voted for the agency on one issue and against the agency on another.31 (On both issues, the EPA advanced a more environmentally protective position than the other side.) In a case involving the calculation of good-time credits by the Federal Bureau of Prisons within the Department of Justice, the three dissenters were swing Justice Kennedy and liberal Justices Stevens (in his last Term

23. Again, because of the split decision in Utility, the total is fractional.

24. I did not include Lawson v. FMR LLC, 134 S. Ct. 1158 (2014), because in that case, Chevron was raised only in dissent and the decision did not involve judicial review of an agency decision. The dissent pointed out that the interpretation arrived at by the majority had been adopted by an agency, but not in a form that would warrant Chevron deference. Id.

at 1186–87 (Sotomayor, J., dissenting).

25. Roberts, 132 S. Ct. at 1353. Justice Ginsberg dissented in part from this eight-to-one decision which ruled against an employee in a dispute over workers‘ compensation benefits.

Id. at 1363–67 (Ginsberg, J., dissenting in part).

26. City of Arlington, 133 S. Ct. at 1865. Justice Scalia wrote the majority opinion in favor of Chevron deference to agency decisions affecting the agency‘s jurisdiction. Id. at

1868. He was joined by conservative ally Justice Clarence Thomas and usually liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Id. at

1866. The dissenters were Chief Justice Roberts and Justices Anthony Kennedy and Samuel Alito, two of the four conservative voting bloc members and swing Justice Kennedy.

27. Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014). This unusual lineup may be due to the fact that the agency‘s decision in Cuellar de Osorio involved an interpretation of an immigration statute by the U.S. Citizenship and Immigration Services that was unfavorable to immigrants.

28. EPA v. EME Homer City Generation, LP, 134 S. Ct. 1584 (2014).

29. Id. at 1590.

30. Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014).

31. See id. at 2441, 2447.

2014] CHEVRON AT THE ROBERTS COURT 735 on the Court) and Ginsburg,32 and in a case involving tax liability, the fiveto-four decision fell along similar lines, with swing Justice Kennedy in dissent along with liberal Justices Ginsburg, Kagan, and Sotomayor.33 In a number of these cases, generally liberal Justice Breyer voted along with the Court‘s conservative bloc,34 perhaps signaling that he is not as reliably liberal on administrative law matters as in some other areas of law. That the disagreements among the Justices in these cases appear to be more about the underlying merits than about the proper application of Chevron and related doctrines confirms my general sense that the time and effort that litigants, and the Justices, spend analyzing whether and how Chevron applies is wasted.

The aggregate voting totals for each Justice still on the Court during the entire period studied (since the beginning of the Roberts Court) tell an interesting story. The totals are indicated in the following table.35

–  –  –

32. Barber v. Thomas, 560 U.S. 474 (2010).



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