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Administrative Law’s Political Dynamics

Posted by on Friday, October 19, 2018 in Articles, Volume 71, Volume 71, Number 5.


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
decisionmaking. 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 decisionmaking 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.

Kent Barnett
Christina L. Boyd
Christopher J. Walker