“Goodbye, Chevron: Rediscovering the Virtues of an Independent Judiciary”
I’ve just published a short article on Chevron and Loper Bright in CPI Antitrust Chronicle, called “Goodbye, Chevron: Rediscovering the Virtues of an Independent Judiciary“. Most of it talks about the Chevron regime generally, though some of it mentions the specific consequences for antitrust policy.
The issue of CPI Antitrust Chronicle also contains a number of other Chevron-related articles:
- “A Quartet of Decisions That Cripple Agencies,” by Richard J. Pierce, Jr.;
- “A New Era of Deference: From Chevron to Loper Bright,” by Daniel E. Walters; and
- “Loper Bright and Antitrust: Limited Impact on Enforcement, but a Clear Constraint on FTC Rulemaking,” by David Kully, Lynn Calkins, and Ken Racowski.
You might encounter a paywall, so here are a few excerpts from my article:
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.
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