Day 206: Talking Deference

Photo by Jackie Hope on Unsplash

As I walked through the hallway today, I waved to a student from my Administrative Law class last semester.

“Did you listen to the oral argument in Loper Bright?” he asked (brightly).

“No! Did you?”

He had.

“What do you think they’re going to do?” I asked.

“Oh, they’re going to get rid of it. There was no appetite at all for keeping Chevron.”

The Court’s liberal minority — Jackson, Kagan, and Sotomayor — appeared to want to retain the doctrine of judicial deference to agency decisions, he said. But the other justices, especially Gorsuch, sounded eager to overturn it.

We discussed the trend itoward the “unitary executive,” in which the president possesses nearly unfettered control over all administrative ageny actions. Under those conditions, we agreed, deference to agencies might look less attractive even to those of a liberal jurisprudential bent; a greater check by the Judicial Branch might sound pretty good. The student offered to send me a great law review article he’d recently read about that subject.

Win-Win (though maybe Not for Chevron)

As a professor of Administrative Law, it gratifies me to hear a student still engaging with the issues in the class a semester later. After all, we go to law school to become informed, engaged legal professionals. That’s just starting when the course ends.

More importantly, as a citizen, it encourages me to hear a new generation of legal professionals grasping the importance of and getting engaged about seemingly technical subjects like judicial deference to agency decision making.

Separation of powers is like the rules of the ballgame — fundamentally altering the rules could affect not just one issue but potentially every issue we debate and dispute in our government. We’re at a pivotal constitutiona moment and I don’t know where we’re headed, but I know I want our next generation of lawyers engaged and excited to join the debate.