More on the rubberized Chevron Deference

More and more I believe this Hamburger strategy and argument on the rubberized Chevron gambit can be a game changer. And it appears to have some traction. Serial executive branch agency misconduct has energized the argument.

Hamburger wrote the book Is Administrative Law Unlawful? in 2014 with applause from JunkScience.com. Hamburger is not shy about writing more, and here is a law review article on the issues.

Forthcoming in George Washington Law Review
Columbia Public Law Research Paper No. 14-417

Link and excerpt below.

Besides discussing the Article III obligations of judges to exercise judgment and not abdicate, the really, really important point Hamburger makes is that systematic deference to agency discretion and expanded (what I call rubberized) Chevron interpretive discretion is a violation of the due process provisions of the constitution because it creates a systematic bias against the citizen litigant challenging agency actions or proposed regulations and policies.

I feel like I have been beat up by deference/delegation judicial dodges for too long.

Dunn JD. EPA junk science on air pollution deaths. Health Facts and Fears,
ACSH, Dec 22, 2004. Available at:
http://junksciencecom.files.wordpress.
com/2013/12/epa-junk-science-on-air-pollution.pdf. Accessed Feb 9, 2014.

Dunn JD. More on EPA and air pollution: junk science and legal
precedents. Health Facts and Fears, ACSH, Jan 6, 2005. Available at:

https://junksciencearchive2.files.wordpress.com/2013/12/mpre-on-epa-and-airpollution.pdf.

Can You Imagine that my objections, so well articulated by Prof Hamburger are included in a 2004, 2005 two-part essay I wrote critical of the EPA Air Pollution Science and human health Claims as Part I and then in Part II criticized Scalia and the judiciary for giving EPA a pass and excess zeal for Chevron deference as exemplified by Scalia’s opinion in American Trucking v Whitman (2001)?

More commentary available at:
https://junksciencearchive2.files.wordpress.com/2013/12/mpre-on-epa-and-airpollution.pdf.

Why would I go after Scalia in the American Trucking case opinion so long ago? It was obvious to me that Scalia was not doing his job when he allowed agency discretion to trump a legitimate effort to challenge science and policy making under the clear language of the Administrative Procedure Act or even just common law leverage using evidentiary admissibility rules under Daubert V Merril Dow (1993).

Judges and lawyers like something they can relate to larger issues of constitutionality and justice so maybe the time is right to look this delegation/discretion thing over. .

To give you an easy intro to the larger Hamburger law review article linked, I have highlighted the abstract and intro sections.

Electronic copy available at:

http://ssrn.com/abstract=2477641

Chevron Bias
Phillip Hamburger

ABSTRACT
This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes
and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about
the role of the judges—questions that have not yet been adequately asked, let alone answered.

One question concerns independent judgment. The judges have a constitutional office or duty of independent judgment, under which
they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked whether they are violating their duty to exercise their own independent judgment.

A second question concerns systematic bias. Under the Fifth Amendment right to the due process of law, the judges cannot engage in systematic bias.

Therefore, when they defer to agency interpretations of the law, it must be asked whether they are engaging in systematic bias in
favor of the government and against Americans, thus denying them the due process of law.

These constitutional questions require the judges to reconsider Chevron. Rather than dwell on the usual statutory question about authorization, the judges (including lower court judges) need to focus on the constitutional questions about their own role.

CHEVRON BIAS
©2015 Philip Hamburger1

So much has been said about Chevron deference that one may doubt whether it is worth
saying more. Strangely, however, the key constitutional questions have been neglected.
Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., judges must defer to an
agency’s interpretation where they find that the agency has statutory authority to interpret its
authorizing statute.

2 The conventional question about deference thus focuses on the statutory
authority for agencies to interpret. There are other questions, however, which are more central for
the judges.


First, even where agencies have congressional authority to interpret, how can this relieve the
judges of their constitutional office to interpret?

Put another way, even where agencies have congressional authority to exercise their judgment about what the law is, how can this excuse the judges from their constitutional duty, under Article III, to exercise their own independent judgment?

Second, even where agencies have congressional authority to interpret, how can this justify
the judges in deferring to the interpretation of one of the parties? When the judges defer to
administrative interpretation, they are deferring to the government or at least one of its agencies.

And because the judges defer in their cases, they often are adopting the interpretation or legal
position of one of the parties.
Such deference thus is systematic judicial bias in favor of the most
powerful of parties and against other parties. Of course, the bias arises from institutional precedent
rather than individual prejudice, but this makes the bias especially systematic and the Fifth
Amendment due process problem especially serious. Therefore, regardless of any statutory authority

1 Maurice & Hilda Friedman Professor of Law. The author is grateful for valuable comments from Joel Alicea, Randy Kozel, Michael McConnell, James Liebman, Thomas Merrill, Henry Monaghan, Jeremy Rabkin, and Peter Strauss. This Article silently modernizes all quotations, other than those from the Constitution, including spelling, capitalization, and italicization.
2 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). For details of the Chevron test, see
text infra at note __ .
Incidentally, the question of statutory authority for agencies can be put in terms of statutory delegation to agencies. The term “delegation,” however, is too narrow, for agency interpretation involves not only legislative power but also judicial power, and Congress does not have judicial power. In other words, although it makes sense to inquire about Congress’s delegation of legislative power to agencies, Congress’s delegation of judicial power is a more complicated question. Therefore, rather than talk about congressional delegation as the foundation for agency interpretation, this Article typically speaks about congressional authorization.

Electronic copy available at: http://ssrn.com/abstract=2477641

2
for agency interpretation, there remains the question of whether the judicial deference amounts to
unconstitutional bias.
Both of these questions have been neglected. Although the question about independent
judgment has long been simmering in the academic and judicial literature, commentators have not
framed it in terms of judicial office and duty and thus have not recognized its full strength. Instead,
with few exceptions, they have either rejected the need for independent judgment or have excused
departures from it.

3 The question about systematic bias, moreover, has not even been explored in
academic and judicial debates; it is both unasked and unanswered.4
Put more broadly, prior Chevron scholarship has focused too much on relations among the
branches of government—that is, on relations between Congress and the executive, between the
executive and the courts, and (completing the circle) between the courts and Congress. The inquiry
about these inter-departmental relations is interesting, but it has distracted attention from the more
immediate questions about the judges’ role—about their office and about their relation to parties in
their cases.

3 The most systematic argument for independent judgment appears to be Cynthia R. Farina, “Statutory Interpretation
and the Balance of Power in the Administrative State,” 89 Colum. L.Rev. 452, 467, 528 (1989) (questioning the courts’ abandonment of independent judgment). Other scholarship more generally notes the Marbury problem. See, for example,
Cass R. Sustein, “Beyond Marbury: The Executive’s Power to Say What the Law Is,” 115 Yale L.J. 2580, 2610 (2006) (arguing that although Chevron is a “counter-Marbury,” it should not apply when serious constitutional question are at stake); Jonathan T. Molot, “Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of
Judicial Power over Statutory Interpretation,” 96 N.W. U. L.Rev. 1239, (2002) (defending Chevron); Thomas W. Merrill, “Judicial Deference to Executive Precedent,” Yale L.J. 101, 969, 995 (1992) (observing the advantages of the multifactor
pre-Chevron approach); Colin S. Diver, “Statutory Interpretation in the Administrative State,” 133 U. Pa. L. Rev. 549, 569-71 (1985) (rejecting the independent review model for agency interpretation). For attempts to excuse the judges from exercising independent judgment in cases involving agency interpretations, see infra Part III. For judicial attention
to the problem, see Justice Scalia’s remarks infra at note __.
For a valuable argument about the duty of federal judges to decide the whole question before them based on their own independent judgment, see James S. Liebman & William F. Ryan, “‘Some Effectual Power’: The Quantity and Quality of Decisionmaking Required of Article III Courts,” 98 Colum. L.Rev. 696 (1998) (arguing against the constitutionality of federal court deference to state decisions under AEDPA—the Antiterrorism and Effective Death Penalty Act). Although the article focus the power of Congress to require federal judges to defer to state court judgments, its argument and analysis of case law support the argument here. Interestingly, Delaware and Michigan courts reject the Chevron deference standard in their review of state administrative interpretations. Aaron Saiger, “Chevron Deference in State Administrative Law,” 83 Ford. L.Rev. 555,
558 (2014) (regarding Delaware and Michigan); John M. Dempsey, “Administrative Law: Michigan Sides with Marbury, not Chevron, on Agency Deference,” 55 Wayne L.Rev. 3, 4-8 (2009) (regarding Michigan).
4 The scholarly concern about bias has not touched on the systematic judicial bias that Chevron requires in favor of
agencies. Instead, one the one hand, there is a fear of agency bias. Cass R. Suntein, “Law and Administration after Chevron,” 90 Colum. L. Rev. 2071, 2101, 2115 (1990) (regarding risks of agency bias); Richard J. Pierce, Jr., “Political Control versus Impermissible Bias in Agency Decisionmaking: Lessons from Chevron and Mistretta,” 57 U. Chi. L. Rev. 481 (1990) (questioning judicial suspicions of political bias in agency decisionmaking). On the other hand, there is a fear
of the political bias of individual judges in applying Chevron. Cass R. Sustein, “Beyond Marbury: The Executive’s Power to Say What the Law Is,” 115 Yale L.J. 2580, 2610 (2006) (when courts “reassert their primacy in the interpretation of
statutory law . . . the political convictions of federal judges continue to play a role in judicial review of agency interpretations. These efforts should be firmly resisted”); Jacob E. Gersen & Adrian Vermeule, Chevron as a Voting Rule,
116 Yale L.J. 676, 699-701 (2007) (proposing to convert Chevron into a voting rule that would limit the political bias of the judges in applying Chevron); Stuart Minor Benjamin, “Who’s Afraid of the APA? What the Patent System Can Learn
from Administrative Law,” 95 Geo. L.J. 269, 311 (2007) (regarding both political bias in both agencies and judges). All such scholarship is very sensitive to the danger of bias, without recognizing the most obvious such danger: that Chevron itself establishes systematic judicial bias favoring the government over other Americans.

Electronic copy available at: http://ssrn.com/abstract=2477641

3
The goal of this Article is therefore to put these neglected questions to the judges. Rather
than ask whether administrative agencies have congressional authority to interpret, the judges
(including lower court judges) should be asking the two questions about their own role. Perhaps,
some agencies have congressional authority to interpret statutes for their purposes, but how can this
excuse the judges from their constitutional duty to interpret statutes for their purposes, and how can
it justify them in engaging in systematic bias in violation of the Fifth Amendment right to the due
process of law?

At stake is much more than administrative interpretation. Far most important, for the judges
and the nation, is the preservation of an independent judiciary and the avoidance of systematic
judicial bias.
Thus, when a judge “respects,” “defers,” or otherwise relies on an agency’s judgment about the law—all of which are summarized here as “deference”—she needs to worry not about the
agency’s authority, but more centrally about whether she candidly is abandoning her very office as a
judge and denying the due process of law.

The Neglected Questions. –The judges’ failure to ask the relevant questions can be illustrated by
almost all cases on administrative interpretation. Already before Chevron v. Natural Resources Defense
Council, and especially since that case, judges have narrowly focused on the statutory question about
congressional authorization, not on the constitutional questions about their own role.5

Chevron states a presumption about statutory authorization for agency interpretation. Prior to
Chevron, the courts would examine an agency’s authorizing statute to determine the degree of
deference they should show to its interpretations, thus engaging in a statute-by-statute multi-factored
evaluation of the congressional authority for administrative interpretation.6 Since Chevron, the courts
have adopted a presumption of congressional authority where authorizing statutes are ambiguous.7
The judges therefore ask whether the statute is ambiguous and then whether the agency’s
interpretation is permissible within the scope of the statutory ambiguity.

In concentrating on these questions about statutory authorization, however, they have failed to confront the constitutional

5 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). For pre-Chevron deference, see
Thomas W. Merrill, “Judicial Deference to Executive Precedent,” 101 Yale L.J. 969, 972-75 (1992); Antonin Scalia,
“Judicial Deference to Administrative Interpretations of Law,” Duke L.J., 511, 512-13 (1989). For the origins of the
Chevron standard in the standard for writs of mandamus, see Philip Hamburger, Is Administrative Law Unlawful? 309
(Chicago: Univ. of Chicago Press, 2014).
6 Antonin Scalia, “Judicial Deference to Administrative Interpretations of Law,” Duke L.J., 511, 516-17 (1989) (noting
the pre-Chevron statute-by-statute analysis); Thomas W. Merrill, “Judicial Deference to Executive Precedent,” Yale L.J.
101, 969, 972, 977 (1992) (noting the pre-Chevron multiple-factors and sliding scale of deference).
7 As a result of Chevron’s presumption from ambiguity, the courts have ended up in the peculiar position of basing their
deference on statutory authorization while presuming such authorization from what the statutes do not say. At the very
least, the generality of the presumption across agencies actually leads to results that do not follow congressional intent.
As put by Justice Scalia, Chevron replaced “statute-by-statute evaluation . . . with an across-the-board presumption that, in
the case of ambiguity, agency discretion is meant,” and in this way, the Chevron rule is “not a 100% accurate estimation of
modern congressional intent.” Antonin Scalia, “Judicial Deference to Administrative Interpretations of Law,” Duke L.J.,
511, 516-17 (1989). Indeed, “any rule adopted in this field represents merely a fictional, presumed intent.” Id.
Making matters worse, as Thomas Merrill observes, “Congress has never enacted a statute that contains a
general delegation of interpretative authority to agencies.” Thomas W. Merrill, “Judicial Deference to Executive
Precedent,” Yale L.J. 101, 969, 995 (1992). In fact, “the one general statute on point, the Administrative Procedure Act,
directs reviewing courts to ‘decide all relevant questions of law.’ If anything, this suggests that Congress contemplated
courts would always apply independent judgment on questions of law.” Id.

4
questions about their own function—about their abandonment of independent judgment and their embrace of systematic bias.
Of course, this is not to say that that the judges are entirely unaware of these constitutional questions. As already noted, at least the independent judgment problem is familiar from academic debates.8 Recognizing part of what is at stake, Justice Breyer has acknowledged the possibility that Chevron’s language suggests an “abdication of judicial responsibility to interpret the law,” and Justice Scalia similarly has worried that Chevron may require “a striking abdication of judicial responsibility.”9
Nonetheless, the closest the judges have come to addressing any constitutional problem with deference has been to worry about delegation. The Constitution delegates the lawmaking power to Congress, and on this basis it has been argued that Congress cannot subdelegate lawmaking to agencies—not even in the form of interpretation.10 But the judges on the whole have not worried much about the delegation objection. On the one hand, in the context of rulemaking, they deny that Congress delegates lawmaking power where it provides at least an “intelligible principle” to guide an agency (a conclusion that seems little more than a fiction); on the other hand, in the context of interpretation, the judges rely on congressional delegation as a justification.11 The constitutional question about interpretation as delegation thus gets asked and answered in a confusing and
8 See supra at note __.
9 Stephen Breyer, “Judicial Review of Questions of Law and Policy,” 38 Admin. L. Rev. 363, 381 (1986); Antonin Scalia, “Judicial Deference to Administrative Interpretations of Law,” Duke L.J., 511, 514 (1989) (defending Chevron).
Bryer aptly observes the “anomaly”—that “[t]he law 1) requires courts to defer to agency judgments about matters of law, but 2) it also suggests that courts conduct independent, “in-depth reviews of agency judgments about matters of policy.” Id, 397. As summarized by Judge Easterbrook, Justice Breyer believes that Chevron “sometimes has led courts to give more force to an agency’s legal arguments (the ‘persuasion’ category) than to the agency’s choices about wise policy (the ‘respect’ category), reversing the proper role of the political and judicial branches.” Frank H. Easterbrook, “Judicial Discretion in Statutory Interpretation,” 57 Okla. L. Rev. 1, 5 (2004).
Breyer notes the hope of some that “any citizen affected by agency action should be entitled to a court’s independent determination that the law authorizes the agency’s conduct.” 38 Admin. L. Rev. at 382. He considers this, however, “neither desirable nor practical. Why should courts ignore agency views on questions of law, especially when they involve minor, technical matters occurring within a complex statutory scheme, such as whether to apply an ‘earned income disregard’ to non-needy caretaker parents under the Social Security Act? If Congress instructs the courts to pay particular attention to the agency’s views, the courts should obey. And, this fact is sufficient to destroy the plausibility of totally independent judicial review.” Id, 382.

Incidentally, these justifications for deference are puzzling. Much agency interpretation goes far beyond “minor” or “technical matters,” and in other areas of law, whether civil or criminal, the courts would never give up their duties, let alone across an entire swath of government power, on the theory that it was just minor and technical.

As for the suggestion that, without Chevron deference, the courts would have to dictate the distribution of social security benefits, this misses the mark, as Congress can authorize the executive to issue rules on benefits, thus eliminating the alleged need for deference in areas such as social security. Most fundamentally, as argued in this Article, the question of what Congress “instructs” the courts is irrelevant, as Congress cannot order the courts to abandon their constitutional office or duty, and they cannot “obey.” Id.

10 Gary Lawson, “Discretion as Delegation: The “Proper Understanding of the Nondelegation Doctrine,” 73 George Washington Law Review 235, 237, 254, 258 (2005); Gary L. Lawson and Patricia B. Granger, “The Proper Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause,” Duke Law Journal, 43: 267, 274 (1994); Gary Lawson, “Delegation and Original Meaning,” Virginia Law Review, 88: 327, 347 (2002); Whitman v. American Trucking Associations, 531 U.S. 457, 487 (2001) (Justice Thomas, concurring, but noting constitutional questions about congressional delegation of legislative power).
11 See, for example, Whitman v. American Trucking Associations, 531 U.S. 457 (2001); J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (both regarding the intelligible principle standard).

5
perfunctory manner, and the judges generally concentrate on the statutory question about authorization.
Their failure to move beyond the question of what Congress has authorized became apparent most recently when, in City of Arlington v. FCC, the Supreme Court held that the judges should defer not only to an agency’s interpretation of its authorizing statute but also to its interpretation that it has statutory authority to interpret its authorizing statute.12 Chief Justice Roberts led the dissenters in repudiating such deference, but he did so merely to insist that the judges had to interpret for themselves whether Congress had authorized the agency to interpret.13 Even he thus accepted the conventional assumption that the question ultimately comes to rest on the statutory authority for the agency, not the constitutional role of the judges. As he put it, “[c]ourts defer to an agency’s interpretation of law when and because Congress has conferred on the agency interpretative authority.”14

True enough. But there remain other questions, which Justice Roberts neglected to ask—not the statutory questions about Congress and the agencies, but the constitutional questions about the judges themselves. Although there are a range of possible constitutional questions about agency interpretation, the two questions about the judges’ own role matter most centrally for judicial deference, and they have been largely disregarded:

First, even if an agency has statutory authority to judge what the law is for its
purposes, do not the judges under Article III have the constitutional office or duty to
exercise their own independent judgment about what the law is for their purposes?

Second, regardless of any agency’s statutory authority, how can the judges
under the Fifth Amendment engage in systematic bias in favor of the government and
against other parties?

These are the questions that all judges need to put to themselves. When one asks these questions about independent judgment and systematic bias, it is unclear how judges can ever defer to executive or other administrative interpretations of law.

Distinct Answers. –The statutory and constitutional questions are very different and have distinct answers. One question is merely statutory and concerns the authority of agencies to interpret. The other questions are constitutional and concern the role of the judges.
The statutory question, about an agency’s authority to interpret for its purposes must begin with an inquiry about what Congress has authorized. It would appear that Congress has given many agencies the power to interpret their authorizing statutes. Under such statutes, and even without

12 City of Arlington v. FCC, 569 U.S. ___ (2013).
The deference in Arlington to an agency’s interpretation of its statutory authority to interpret is all the more remarkable because agencies notoriously stretch their statutory authority to expand their power. Long ago, Chief Justice Marshall observed that the Supreme Court can take neither a narrow nor an expansive view of its jurisdiction, but must expound its jurisdiction without leaning one way or the other: “The duties of this Court to exercise jurisdiction where it is conferred and not to usurp it where it is not conferred are of equal obligation. The Constitution, therefore, and the law are to be expounded without a leaning the one way or the other, according to those general principles which usually govern in the construction of fundamental or other laws.” Bank of the United States v. Deveaux, 9 U.S. 61, 87 (1809) (holding that a corporation with shareholders from one state is a citizen of that state for purposes of diversity jurisdiction). In contrast to the Supreme Court, however, an agency can take a strained interpretation of its authority and expect judicial deference to its interpretation.
13 City of Arlington v. FCC, 569 U.S. ___ (2013).
14 Id.

6
them, many agencies can lawfully interpret the law for their own purposes. Since the earliest days of the Republic, the secretary of a department, even without congressional authority, could interpret the law for purposes of directing his subordinates in the conduct of their lawful duties.15 More recently, Congress appears to have authorized many agencies to interpret for purposes of binding Americans (in the sense of imposing legal obligation on them). The statutory authorization, however, for agencies to interpret statutes is another question for another day.

What matters here, instead, is a pair of constitutional questions, about the judges’ duty of independent judgment and about the people’s due process right not to be subject to systematic judicial bias. These questions are constitutional, and they therefore cannot be resolved by asking about the statutory authority for executive and other agencies. Even if an agency has statutory authority to interpret for its purposes, the courts and their judges enjoy their office of judgment from Article III and are limited by the Fifth Amendment.

16
It therefore makes no difference whether Congress authorizes agencies to interpret expressly or through ambiguity. Either way, the judges have a constitutional duty to exercise independent judgment, and the people have a constitutional right against systematic bias. Regardless of the theory of statutory authorization for agencies, the constitutional problems for the judges remain.
Put another way, no amount of statutory authority for agencies can ever relieve judges of their constitutional duty or of the people’s constitutional right. The statutory question about the authority for agencies cannot save the judges from the constitutional questions about their role.
Overview. –The judges have for too long understood Chevron deference merely in terms of the statutory question about an agency’s authority.

More seriously, the judges need to consider the neglected constitutional questions about their own role. To help the judges in facing up to these questions, this Article touches on six basic points: (I) the limited scope of the argument, (II) the constitutional questions about the duty of independent judgment and about the right to be free from systematic bias, (III) the excuses, (IV) the depth of the constitutional problem, (V) the ways in which the argument here is not a challenge to precedent, and (VI) the paths for judicial correction. There is much more that could be said about agency interpretation.17 The ensuing points, however, should suffice to show the force of the questions about independent judgment and systematic bias.

the in-depth treatment of the neglected constitutional questions is in the rest of the 41 page paper.

john1282 final comments:

I do believe we have a robust analysis and argument here, thanks to Prof Hamburger, who now is clearly my favorite Ivy League Con Law expert.

The reason this Hamburger strategy is so important is that deference has eliminated arguments or objections on science/economics and policy making issues, leaving the agency always at a terrible advantage against citizens.

We at JunkScience are concerned about–how can judges abdicate their responsibilities and defer to executive branch agencies without violating their oath and the constitutions provisions for separation of powers and fair treatment of citizens petitioning their government for relief for agency misconduct, bad science, overreach and burdensome regulatory interference with property rights.

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