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December 01, 2020

Judicial Modesty and the Administrative State

Todd Phillips

Administrative law is full of court-made doctrines created to ensure the proper functioning of the administrative state but which are frequently invoked by political actors as they use the courts to accomplish their legislative and regulatory policy goals that they failed to enact—or prevent being enacted. Courts should wield their power modestly by respecting Congress’s and the president’s authorities and competencies to negotiate policy and rejecting the implementation of their own policy preferences found nowhere in administrative law.

For example, lenders successfully sued the Consumer Financial Protection Bureau to ensure its Director could be fired at will by the president when the Supreme Court used the unitary executive theory to declare that Congress could not condition the president’s removal authority in single-director agencies. Environmentalists sued the Nuclear Regulatory Commission in an attempt to overturn a mining license by claiming the agency had failed to take a hard look at the environmental consequences. The courts have opened the door to similar challenges with the major questions doctrine, the Portland Cement doctrine, the non-delegation doctrine, and others.

These administrative law doctrines are divined by looking at the structure of the Constitution and deducing that these doctrines would help effectuate the tripartite system of checks and balances or by reading into the Administrative Procedure Act language that is not there. For example, the non-delegation doctrine presumes that there are some areas of law that Congress cannot delegate policymaking authority to the president, even if it enacts such a law. The unitary executive theory presumes that the single president must be able to fire subordinates at will, despite not being able to hire many positions at will and despite evidence that the First Congress believed in such a principle. The D.C. Circuit in Automotive Parts & Accessories Association v. Boyd instructed agencies to ignore the plain text of the APA, “caution[ing] against an overly literal reading of the statutory terms ‘concise’ and ‘general.’”

Although judges get to “say what the law is,” court precedents are the policy preferences of the judges who articulated them. And although judicial doctrines are easy to create (five votes on the Supreme Court, or two on the D.C. Circuit), court opinions are notoriously difficult to overturn, given the difficulty in enacting statutes in Congress and the near impossibility in amending the Constitution; I am confident there will never be a constitutional amendment clarifying the existence or lack thereof of the non-delegation doctrine.

It should come as no surprise, then, that many are urging the Supreme Court to overturn Chevron deference—a doctrine that, by its very nature, prohibits judges from being policymakers.

The doctrine’s creation is worth recapping. At issue in Chevron v. Natural Resources Defense Council, was a statute mandating that certain states “require permits for the construction and operation of new or modified major stationary sources” of air pollution, which Congress defined as “any building, structure, facility, or installation” that emits at least 100 tons of air pollution. The EPA issued a regulation allowing states to issue permits for entire industrial plants, rather than for each individual pollutant-emitting structure at a plant. The Supreme Court was being asked to determine whether this “bubble concept” complied with the statute. A ruling that it did would allow existing plants with multiple pollution-emitting structures to install new equipment so long as the total emissions from the plant do not increase, allowing individual structures within a plant that could alone meet the definition of a major stationary source to escape scrutiny.

In this instance of an ambiguous statute, the Supreme Court explained that policy determinations should be made by the political branches of government, rather than “on the basis of the judges’ personal policy preferences.” “Federal judges,” the Court wrote, “have no constituency [and] have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones.” On that basis, the Court detailed the well-known Chevron Two-Step: At step one, look at Congress’s intent. At step two, look at the executive’s intent, if it is a plausible interpretation of the first.

Perhaps the takeaway from Chevron should not be the two-step framework that has become doctrine, but that if a preference by an elected branch of government can be deciphered, that preference—the preference of the voters—should prevail.

Many administrative law doctrines permit judges to go—unnecessarily—far outside the bounds of what this “judicial modesty” would support, enabling judges to rewrite laws on behalf of plaintiffs who could not accomplish their policy goals through the legislative process:

  • The major questions doctrine allows courts to strike down regulations whenever they decide the executive branch should not be able to address a policy issue through regulation, though Congress could enact a new statute (and override a president’s veto) to undo the administration’s action.
  • Portland Cement allows courts to overturn regulations on the mere basis that agencies did not put in rules’ preambles that they considered particular comments, though (a) Congress drafted the plain text of APA to simply require “concise” explanations of rules; (b) agencies may have considered particular comments without noting such; (c) there are other methods for determining whether agencies did consider particular comments, such as discovery; and (d) Congress could amend the APA to require responses to comments.
  • The non-delegation doctrine allows courts to invalidate statutes whenever they think Congress should not grant policymaking authority to the executive branch, though, in enacting such statutes, Congress voluntarily voted to do just that.
  • And the unitary executive theory allows courts to subordinate Congress’s preferences (that some officers should have independence) to that of the executive (that they shouldn’t), though that principle is nowhere in the Constitution and is contrary to past practices. 

The legislative and executive branches are fully able to negotiate thorny issues themselves, and courts should be reticent to override the products of them doing so.

Judges justify the nullification of duly-enacted statutes and regulations as fidelity to the congressional intent or original intent of the founding fathers, but judges are allowing their own policy priorities to win out over those of Congress and the president. One observer, for example, noted that Justice Scalia seemed to “create a whole different set of rules” for deference to EPA interpretations during the Obama administration, and Justice Kagan wrote that the Seila Law majority articulated a “‘general rule’ of unrestricted presidential removal power” that “does not exist,” with exceptions “made up for the occasion.”

The judiciary is the only branch of government that is unelected. Judges do not represent the will and voice of the American public. We the people cannot retain or vote out federal judges, despite their immense policymaking capacity. For those reasons, judges should practice “judicial modesty” and exercise significant restraint before overriding the public’s elected representatives.

Todd Phillips


Todd Phillips is a government lawyer in Washington, D.C. This article expresses the author’s personal views alone.