Wednesday, September 27, 2017
Lately, judicial deference to agency decision-making is a hot topic (by administrative law standards, at least). Judges and law professors are always talking about deference, but the recent attack on Chevron deference, spearheaded by now-Justice Gorsuch, has upped the ante.
In those debates, we often hear two justifications for deference. One—the delegation justification—is grounded in Congressional intent. The basic idea is that when Congress allocates a task to an administrative agency, it wants the agency, not the courts, to take the lead. While judicial oversight remains appropriate, the courts should not upend Congress’s choice of delegate. The other justification—the expertise justification—is grounded in relative institutional competence. The idea is that agencies have more expertise than judges on the subject matter at hand.
Both of these justifications are compelling, but I think a third justification ought to inform the deference jurisprudence. That justification is simple. An additional reason for judicial deference to agency decision-making is our respect for work.
To illustrate that point, consider an example that does not involve judges or agencies. Suppose a colleague and I are co-teaching a course in a subject area that we know equally well. Suppose that, for reasons of scheduling, my colleague does more work than I do in preparing a class. And suppose that we then have a disagreement about how the class should be taught. The appropriate response, most of us would agree, would be for me to defer to my colleague’s judgment. I wouldn’t be deferring because my colleague received delegated authority to make the decision, or because my colleague has more generalized expertise in the subject matter than I do. I would be deferring to my colleague because my colleague has done the work. And that, in turn, would seem appropriate for several reasons. One blurs into the expertise rationale a little bit; a likely byproduct of my colleague’s work is greater knowledge of the subject matter directly at hand. But the other reason is grounded in cultural values and the positive incentives they create. We understand, as a culture, that work is hard and that work is important, and therefore we respect, and we defer to, people who actually do it.
Or, at least, we should. But when we talk about the work of administrative agencies, that basic respect for work often seems absent. For me, this has been particularly striking in the judicial and political responses to the 2015 Clean Water Rule, which attempted to clarify the scope of federal jurisdiction under the Clean Water Act. EPA and the Army Corps of Engineers put a ton of work into that rule, and they based it on a peer-reviewed scientific synthesis document, which in turn was based on a review of over 1,000 peer-reviewed studies. Even preparing just one peer-reviewed study is a lot of work; collectively, those studies represented years of effort by hundreds of stream scientists. The rule, in other words, stood atop a massive foundation of careful thinking and hard work, and that ought to command respect.
Yet first judges and now the Trump Administration are doing their best to throw all that work aside. A federal district court judge in North Dakota went first, enjoining the rule in a dismissive and inaccurate opinion that demonstrated neither any respect for the work the agencies had put into their rule nor even awareness that reading an administrative record is part of the work of judging. Next came an injunction from the Sixth Circuit, which was more respectful in its tone and careful in its prose, but which still offered just a brief analysis explaining why it was putting years of effort on hold. Now, most recently, the Trump Administration’s appointees at EPA and the Army Corps have proposed to repeal the 2015 rule, in a cursory rulemaking proposal that, as some colleagues and I explain in these comments, simply ignores the scientific record informing the 2015 rulemaking (and some basic requirements of administrative law). The new rule, in other words, neither reflects nor respects work.
It isn’t hard to see where at least some of this is coming from. To politicians of President Trump’s ilk, the idea of a hardworking agency staff member is the sort of joke that gets a good laugh on the golf green. It isn’t reality. And there’s no need to respect agency work agencies actually do no work (or work only when scheming to maximize their own power). But as anyone who actually interacts with agency staff knows, there are thousands of hardworking government agency staff in this country, and our nation could not subsist without the work they provide. Judges, and the rest of us, ought to respect that—except, of course, when the work really is absent. And that’s why the Trump Administration’s new rulemaking deserves no deference at all.
- Dave Owen