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Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: Libertarian groups such as the Pacific Legal Foundation are already

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Speaker 1: gearing up for fines with the Biden administration over financial regulations,

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Speaker 1: environmental rules, new policies to combat the pandemic, and other regulations.

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Speaker 1: They'll likely be joined by Republican state attorneys general who

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Speaker 1: fought President Obama's regulatory agenda in the courts, and one

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Speaker 1: legal doctrine is likely to be front and center. The

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Speaker 1: Chevron doctrine joining me is constitutional law professor Steven Vladdock

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Speaker 1: of the University of Texas Law School. Steve explain the

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Speaker 1: Chevron doctrine and Chevron deference. It's a staple of modern

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Speaker 1: administrative law. And the big idea is that if you

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Speaker 1: have some complex federal statutes that's administered by an agency

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Speaker 1: like the Environmental Protection Agency or the US Party of Agriculture,

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Speaker 1: and there's something in the statue of the ambiguous, there's

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Speaker 1: some authority that the ambiguous, there's some definition that's ambiguous,

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Speaker 1: ideas that court should generally defer two reasonable interpretations of

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Speaker 1: that language by the agency on the ground that the

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Speaker 1: agency is the expert. The agency is closest to the ground,

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Speaker 1: and that the agency is, in the best addition to

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Speaker 1: understand what interpretation of the statute makes the most sense,

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Speaker 1: and that it's far more likely that the agency is

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Speaker 1: going to have the right understanding of the ambigious language

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Speaker 1: than generalist judges in the federal courts. And so since

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Speaker 1: the nineties, the Supreme Court has adhered to this idea

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Speaker 1: that where a statute is ambiguous and we're clearly meant

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Speaker 1: to be administered by a particular federal agency, the agency's

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Speaker 1: reasonable interpretation of the statute just control. And the amy

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Speaker 1: Cony Barrett hearings, not much attention was given to the

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Speaker 1: fact that she refused to give an opinion on the

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Speaker 1: Chevron doctrine. Why do you think she dubbed the question

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Speaker 1: about a doctrine that's been accepted for more than thirty

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Speaker 1: five years. Well, I mean, I think it's a pretty

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Speaker 1: poorly kept secret. June that conservatives have been very hostile

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Speaker 1: to the Chevron doctrine in recent years, that there have

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Speaker 1: been efforts to get the Supreme Court to revisit the

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Speaker 1: Chevron doctrine. Justice Kavanaugh, for example, has written extensively about

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Speaker 1: it and has criticized at least moves on the DC Circuit.

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Speaker 1: So I suspect that in the vein of not answering

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Speaker 1: questions about issues that are likely to come before her now,

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Speaker 1: Justice Barrett I think was thinking about Chevron as part

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Speaker 1: of that as well. But the Court has had opportunity.

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Speaker 1: It was asked in a case about a year and

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Speaker 1: a half ago to overrule sort of a related doctrine

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Speaker 1: to Chevron, called our Defforts, and the Court didn't really

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Speaker 1: do that. So I think there's an interesting question about

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Speaker 1: whether the confirmation of Justice Barrett now means that it's

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Speaker 1: even more likely the Court's going to revisit the Chevron doctrine,

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Speaker 1: or whether there really are enough off ramps, enough ways

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Speaker 1: around the Chevron doctrine that the Court just won't even

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Speaker 1: shield the need to overrule it. But June, here's I

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Speaker 1: think the larger point the criticism of Chevron doctrine, at

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Speaker 1: least the one that you hear from folks like Justice Kavanaugh,

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Speaker 1: is that it's anti democratic, that it's giving all of

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Speaker 1: this interpretive power to unelected, faceless bureaucract and government agencies

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Speaker 1: they've never heard of. But the alternative is giving the

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Speaker 1: exact same power to unelected judges, not to you know,

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Speaker 1: elected legislators or the president. And so I think the

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Speaker 1: question that sees up is who do we think is

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Speaker 1: in a better position to resolve reasonable ambiguities in these

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Speaker 1: kinds of statutes. The folks who are administering them on

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Speaker 1: behalf the federal government or the judges who are interpreted

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Speaker 1: in them. That's really what the debate boils adopted and

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Speaker 1: the justice is debated that in the case you mentioned

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Speaker 1: from last year Kaiser versus Wilkie, here are justice is

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Speaker 1: Stephen Bryer and Neil Gorsi. There are hundreds of thousands,

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Speaker 1: possibly millions of interpretive regulations. I mean they give it

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Speaker 1: an example one of them where the court deferred to

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Speaker 1: the understanding of the FDA that a particular compounds should

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Speaker 1: be treated as a single new active moiety which consists

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Speaker 1: of a previously approved moiety joined by a non esther

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Speaker 1: covalent bond to a life see improved. Do you know

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Speaker 1: how much I know about that? The one thing you're

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Speaker 1: gonna know is you're gonna have an independent judge decide

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Speaker 1: what the law is in your case, consistent with the

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Speaker 1: statute that says an independent judge shall decide all questions

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Speaker 1: of law. That seems to be a significant promise, especially

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Speaker 1: to the least and most vulnerable among us, like the immigrant,

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Speaker 1: like the veteran, who may not be the most popular

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Speaker 1: or able to capture an agency the way many regulated

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Speaker 1: entities can today. Is it a separation of powers concern?

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Speaker 1: You have government agencies in the executive branch stripping Congress

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Speaker 1: of its legislative authority, you know, I think it's I

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Speaker 1: think it's a half step, I think more convolutive than that. Right,

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Speaker 1: It's not just that you have executive branch agencies taken

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Speaker 1: power away from Congresses, that you actually have Congress taking

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Speaker 1: judicial power away from the Court. That you know, if

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Speaker 1: the Chevron doctrine pre supposes that reasonable inter citations of

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Speaker 1: the ambiguous language in agency statutes are going to be

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Speaker 1: you know, accepted by the courts, can't be second guests

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Speaker 1: by the court. It's really not about taking away legislative powers,

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Speaker 1: not taking away judicial power. And that's I think the

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Speaker 1: important thing for folks to understand about the debate. It's

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Speaker 1: not about whether publicly elected, you know, democratically elected, democratically

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Speaker 1: accountable legislators should be the ones making these decisions. It's

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Speaker 1: a choice between you know, the the executive branch officials,

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Speaker 1: who we should say are appointed by elected presidents or

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Speaker 1: unelected judges, And you know, that's what the doctrinally boils

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Speaker 1: down to. Who do we think is in a better

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Speaker 1: position to get the law right when we're talking about

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Speaker 1: complex questions of federal law with the texts intew the

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Speaker 1: Chevron doctrine was championed by Justice Anton Schley at first,

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Speaker 1: why did he then sort of seur on it. I

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Speaker 1: don't think it's entirely a coincidence that there were times

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Speaker 1: when more conservative justices were more partial to Chevron if

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Speaker 1: there was a more conservative administration, and less partial to

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Speaker 1: Chevron if there is a more progressive administration. But I

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Speaker 1: think also just like the modern conservative view of the

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Speaker 1: separation of powers has become June so much more formalistic,

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Speaker 1: and so in that regard, there are now at least

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Speaker 1: four votes on the Supreme Court to reinvigorate the non

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Speaker 1: delegation doctor, which is an even broader constraints on Congress's

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Speaker 1: power to delegate authority to administrative agencies. So I think

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Speaker 1: the hostility to Chevron is in some respects part and

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Speaker 1: parcel of the increasing formalism that has come to characterize

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Speaker 1: conservative separation of powers to students. But this, to me

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Speaker 1: is actually part of the problem, which is that's one

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Speaker 1: of the priest of formalism, because it doesn't really adequately

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Speaker 1: and accurately account for what's true on the ground that

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Speaker 1: if your critique of Chevron is that it gives too

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Speaker 1: much power to unaccountable bureaucrats, why is it better to

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Speaker 1: give the same amount of power to unelected judges. Republican

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Speaker 1: ags fought President Obama's regulatory agenda, and you mentioned libertarian

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Speaker 1: in groups like the Pacific Legal Foundation are already gearing

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Speaker 1: up for fights over some of the things you just mentioned,

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Speaker 1: financial regulations, environmental rules, et cetera. So they'll come before

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Speaker 1: these more conservative federal appeals courts in many instances. But

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Speaker 1: will the appeals courts still have to apply Chevron deference? So,

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Speaker 1: I mean, the short answer, Junion is formally yes. And

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Speaker 1: of course, you know the course of appeals have no

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Speaker 1: authory to overrule Supreme Court decision and refused to follow it. Um.

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Speaker 1: Of course, you know we've already seen plenty of examples

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Speaker 1: of courts finding ways to say that they're not really

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Speaker 1: bound by Chevron, or they're not really bound by Supreme

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Speaker 1: courts in the space. So you know, yes, no court

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Speaker 1: can say I don't have to follow Chevron because it's

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Speaker 1: no longer good law. That doesn't mean we won't have

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Speaker 1: lower courts, you know, trying to carve out new exceptions

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Speaker 1: to Chevron, trying to find you know, plausible or implausible

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Speaker 1: grounds for why Chevron doesn't apply. And I also think, well,

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Speaker 1: we'll start to a whole bunch of concurring opinions from

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Speaker 1: judges who, even if they're applying these doctrines, you know,

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Speaker 1: are going to push the Supreme Court to revisit and

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Speaker 1: reconsider them. How has the Roberts Court been treating Chevron?

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Speaker 1: I saw that Joshua Matt said the current Supreme Court

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Speaker 1: majority is killing Chevron through disuse. What's your take on

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Speaker 1: how the Court has been handling Chevron. I mean, I

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Speaker 1: do think that the Court has been chipping away at Chevron,

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Speaker 1: and it's done that in a couple of different perspective. Um.

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Speaker 1: The first is that it's had a couple of big

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Speaker 1: cases where you know, it said we don't even get

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Speaker 1: to the Chevron analysis. If the question is efficiently important.

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Speaker 1: So the King versus Burwell, a c A case, is

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Speaker 1: a good example of that. Um. The second is that

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Speaker 1: you know, the Court has found a couple of there's

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Speaker 1: been a couple of cases where the Court just ignored

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Speaker 1: Chevron when one might have thought that Chevron analysis should

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Speaker 1: have applied. UM. But you know what's revealing to me

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Speaker 1: about that, June is that suggests a court that at

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Speaker 1: least thus far, has not been willing to con aunt

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Speaker 1: Chevron directly. UM. And I think one of the big

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Speaker 1: questions of many surrounding the confirmation of Justice Barrett is

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Speaker 1: whether you know, now with a far more solid six

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Speaker 1: three conservative majority, is that another of those areas that

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Speaker 1: the Court until recently had been sort of, you know,

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Speaker 1: dancing around, that is now willing to confront head on.

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Speaker 1: I think that's what the seas an eye up for

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Speaker 1: in the you know, in the month and years to come.

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Speaker 1: Explain what Justice Roberts meant when he wrote that Chevron

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Speaker 1: does not apply to regulatory questions with quote deep economic

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Speaker 1: and political significance. What does that mean? It's a great question,

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Speaker 1: and I think a lot of scholars and judges have

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Speaker 1: been trying to figure that out. Ever, since he wrote that.

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Speaker 1: But the idea is that basically, when the question is

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Speaker 1: sufficiently significant, when it's a big enough question and implicates

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Speaker 1: you know, billions of dollars or massive nationwide federal programs

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Speaker 1: that you know, with the court should not assume that

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Speaker 1: Congress intended to give so much to still prety to

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Speaker 1: the agency at the post of the course. That basically,

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Speaker 1: the more important the issue, the more the statute should

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Speaker 1: be interpreted with an eye towards Congress wanting the courts

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Speaker 1: to resolve ambiguities. Um. The of course, the tricky part

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Speaker 1: is it is incredibly subjective to decide which cases fall

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Speaker 1: into that category in which ones don't. And I think

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Speaker 1: that's you know, that is evidence to me of both

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Speaker 1: as the decay of Chevron, but also it's continuing persistence

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Speaker 1: that the Court has you know, torn chunks out of it,

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Speaker 1: but it hasn't gone after it um on its own,

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Speaker 1: It hasn't gone after it full four. And I think

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Speaker 1: that's where the question of you know, Justice Barrett comes in,

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Speaker 1: and would she be of stiff with inappropriate case to

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Speaker 1: scrap the doctrine altogether? Do you see five other votes

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Speaker 1: to scrap Chevron? You know, I think it depends on

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Speaker 1: the context. I mean I was I'll say I had been.

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Speaker 1: You know, I had thought that there would be at

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Speaker 1: least five votes um for the Court to strike down

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Speaker 1: the sort of the you know, the related doctrine of

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Speaker 1: so called our defference in the Kaisor versus will be

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Speaker 1: taste last year UM. But the Court didn't quite do

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Speaker 1: that UM. And I think one of the interesting questions

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Speaker 1: here is, you know, I is kais Or assigned that

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Speaker 1: the Court actually is going to be more reluctant to

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Speaker 1: overrule doctors in this context, um, or was kais Or

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Speaker 1: just a bit of a fluky taste because Chief Justice

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Speaker 1: Roberts was willing to go along with most of Justice

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Speaker 1: Kagan's opinions, and even now with Schusice Roberts, that wouldn't

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Speaker 1: be enough. I mean, that's kais Or to meet you.

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Speaker 1: And it's the real bell Weathers here, because if that

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Speaker 1: boat line up pulls up, that means, you know, Justice

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Speaker 1: Barrett could be the fifth vote um in a future

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Speaker 1: case to really go after Chevron, even if the Chief

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Speaker 1: is not well is not willing to go there. Suppose

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Speaker 1: the Court overrules Chevron. What happens then is the administrative

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Speaker 1: state over I mean what happens. No, I mean so

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Speaker 1: so we should put the silpain context. I mean, compared

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Speaker 1: to reviving the nondelegation doctrin, which would be just a

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Speaker 1: fundamental paradigm shift in an administrative law um kind in

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Speaker 1: word of Chevron, I think, would transfer a ton of

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Speaker 1: power from agencies to the courts. But of course that's

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Speaker 1: only the first steps in the question is with the

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Speaker 1: courts actually disagreed with how the agencies are supported to

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Speaker 1: exercise it. And so you know, to me, the sort

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Speaker 1: of the demise of Chevron would simply would not have

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Speaker 1: implications for the administrative states other than um the implications

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Speaker 1: of being far more subject to judicial supervision. Of course,

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Speaker 1: depending upon who the judges are, depending upon who's in

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Speaker 1: charge of the executive branch at that point, that supervision

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Speaker 1: might not actually be antithetical to those policies. That's why

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Speaker 1: I think, you know, Severron is important, but its tails

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Speaker 1: in comparison to the coming fight over the nondelegation doctrine

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Speaker 1: um and whether Congress can delegate broad forms of you know,

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Speaker 1: executive and in some cases judicial power to administrative agencies.

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Speaker 1: In the first place, we've seen over the last four years.

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Speaker 1: How litigation takes time, and the Trump administration has been

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Speaker 1: able to implement changes even though they have been suiting

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Speaker 1: courts so many times by democratic ages and other groups.

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Speaker 1: So would it take four years for this issue to

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Speaker 1: get resolved? Does he have time in those intervening years

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Speaker 1: to to put some regulations down. Yeah, I mean, I

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Speaker 1: think we're in for in many ways of reverse of

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Speaker 1: what we saw when the Trump inminisation. So in the

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Speaker 1: Truans administration, we saw you know a lot of Trump

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Speaker 1: policies that were enjoined by lower courts, but then where

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Speaker 1: the administration was able to get a stay of the

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Speaker 1: injunction from the Supreme Court. And so even though the

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Speaker 1: policies were held to be unlawdeled by lower courts, they

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Speaker 1: actually remained in effect while the appeals worked their way

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Speaker 1: through the court system. You know, with the composition of

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Speaker 1: the courts of Appeals and the and the Supreme Court today,

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Speaker 1: I think we're far more likely in a Biden administration

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Speaker 1: to see denials these days. Um right said, if if

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Speaker 1: the administration loses these cases in the lower courts, um

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Speaker 1: I won't be able to get the same kind of

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Speaker 1: emergency relily fun appeals, and so you know, I think

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Speaker 1: it's going to be incumbent upon the Biden administration to

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Speaker 1: actually try to get the merits of these cases through

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Speaker 1: the court faster because it's less likely to have support

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Speaker 1: in the form of these you know, stays and other

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Speaker 1: emergency release while these cases are pendent. So it's going

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Speaker 1: to be a very different parasign for you know, litigation

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Speaker 1: over government policy, um in the next four years. And

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Speaker 1: we've seen over the past four years. Funnily, what are

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Speaker 1: the odds that Chevron will be with us in four years? UM?

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Speaker 1: I think the odds that Chevron itself is still here

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Speaker 1: are pretty slammed. UM. But I don't know that the

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Speaker 1: alternative is no difference to agencies ever. And so you know,

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Speaker 1: if if the question is the court going to take

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Speaker 1: an even bigger bite out of Chevron over the next

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Speaker 1: four years, I put pretty good money on that is

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Speaker 1: there's still gonna be some scenarios in which courts are

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Speaker 1: going to defer to agency interpretations at statutes. You know,

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Speaker 1: I said, the odds are yes, even if it's not

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Speaker 1: quite on the terms that Chevron laid out. Thanks for

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Speaker 1: being on the Bloomberg Law Show. Steve. That's Professor Stephen

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Speaker 1: Vladdock of the University of Texas School of Law. And

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Speaker 1: that's it for the edition of the Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www dot Bloomberg dot com slash podcast, Slash Law.

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Speaker 1: I'm June Grosso. Thanks so much for listening. Please tune

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Speaker 1: into The Bloomberg Law Show every week and I attend

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Speaker 1: DN Eastern right here on Bloomberg Radio. Than