"Goodbye, Chevron: Rediscovering the Virtues of an Independent Judiciary"

The Chevron Court had defended the rule of deference by appealing to agencies’ greater subject-matter expertise and democratic accountability (through the president). These twin policy rationales are both potentially relevant for agencies like the FTC, though neither is airtight. In the first place, the FTC has over a century of experience in defining “unfair methods of competition.” (But again, recall that, when such unfair methods relate to labor, one can debate whether the FTC should have any privileged position relative to, say, the Department of Labor.) And in the second place, the FTC is subject to political control, and it surely shows some responsiveness to democracy that the FTC’s views have shifted substantially with administrations of different political parties. (Though at the same time, it can be problematic to talk about democratic accountability for independent commissions that are, by design, shielded from presidential control through restrictions on removal.)

But, more broadly, these policy rationales are in substantial tension with other features of separation-of-powers law. Much of administrative law was forged in the D.C. Circuit of the 1960s and 1970s, when influential appellate judges — “liberals” and “judicial activists” like J. Skelly Wright and David Bazelon — tightened up the APA’s procedural requirements and developed a “searching and careful” version of hard-look review. Their idea was that — contrary to the credulous view of apolitical bureaucratic expertise that prevailed in the 1930s — agencies will tend to pursue narrow agendas (for instance, the agenda of the regulated industry itself) rather than the public interest, and therefore need a strong and independent separate branch to check their bad impulses. These procedural and substantive features of administrative law can be thought of as anti-delegation canons, predating by decades the major questions doctrine and coming from a very different ideological perspective than, say, the anti-administrative anti-delegationism that has long been popular in Federalist Society circles and is now championed by Justices Gorsuch and Thomas.

Consider, too, one of the finest moments of separation-of-powers doctrine, which arose in a military-and-national-security-adjacent context where one would have expected strong deference. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court held that President Truman didn’t have the power to seize steel mills, even though the president claimed military necessity.

Was there ambiguity in the statute? Yes, there was: Just as in Loper Bright, the statute provided the necessary seizure authority in a number of cases but was silent on the case at hand; this could be interpreted as mere statutory silence, but (in a sort of expressio unius move) the Court instead interpreted it as a congressional decision to deny the president the seizure power. Was there subject-matter expertise? Yes, because the president, as Commander-in-Chief, understands military necessity better than judges, and because the Supreme Court has long held that the president occupies a privileged position when foreign and military affairs are involved. Was there democratic accountability? Yes, because the president himself (not some obscure agency) was directly involved, and because the Korean War (though never declared by Congress) had a high degree of political salience.

Nonetheless, the Court exercised its independent judgment and kept the president within statutory and constitutional bounds. The Youngstown Court and the later D.C. Circuit judges would surely have agreed that to do otherwise would be to leave the fox guarding the henhouse.

And here’s a bit from the end, suggesting that someone (like me) who, looking at current poll results in swing states two weeks before the election, is afraid of the possibility of a new Trump term, might welcome a move that reins in agencies’ discretion to determine the bounds of their own power: