Disagreeing With David French

Yesterday, I promised to discuss an issue on which I strongly disagree with David French. Chevron is that issue.

Allow me to explain.

The Supreme Court is currently hearing a case that’s likely to overturn or eviscerate something called the Chevron Doctrine. That doctrine requires courts to “defer” to an agency’s interpretation of an ambiguous statutory delegation.

For example, Congress might direct the EPA to achieve a certain clean air result, but since few Congressmen have the technical background to tell the EPA just how to achieve that result, experts at the EPA must determine what regulations are needed to reach that goal. The Chevron doctrine requires the courts to “defer” to that agency’s expert determination unless the court finds it unreasonable.

 French argues that overturning the doctrine would “rebalance” the division of authority between the branches of government. His argument centers on “democratic accountability” and the fact that Congress is broken.

Congress is not performing its constitutional tasks. It’s a broken institution that contains too few genuine lawmakers and far too many would-be activists and TV pundits. Time and again, it has proved incapable of compromise or of accomplishing even the most basic legislative tasks. It’s been 27 years since it even passed a budget on time. And that barely begins to capture the current level of dysfunction, with a razor-thin House Republican majority consistently held hostage by a mere handful of MAGA extremists.

As Congress has shirked its duties, presidents and the courts have filled the power vacuum. Presidents have used the power of their executive agencies to promulgate new regulations without congressional involvement. Executive agencies publish 3,000 to 4,500 new rules per year, and these regulations have a substantial impact on the American economy. Compounding the problem, courts have ratified that presidential power grab by enacting a series of judge-made rules that require federal courts to defer to the decisions of executive agencies.

The answer to “rebalancing” the power dynamic between Congress and the Executive branch is to fix Congress. It isn’t to require federal judges to substitute their judgments for those of experts on increasingly technical issues. 

The current doctrine provides an adequate remedy for instances where agencies have overstepped or acted irresponsibly–“unreasonably.” Jettisoning the doctrine will truly open those storied “floodgates of litigation,” allowing monied business interests to tie up proposed regulations for years and hampering agency operations with overly intrusive reviews.

 Chevron deference has served the country well. In his Substack letter, legal scholar Steven Vladick addressed French’s “democratic accountability” argument head on.

A common response to that objection is that a world without Chevron is a world in which those interpretive questions won’t be answered by Congress; they’ll be answered by even less democratically accountable federal judges—who are the real “victims” of Chevron deference. After all, if a statute is ambiguous, the real question Chevron asks is whether the agency or the reviewing court is better situated to resolve the ambiguity. To be sure, some of Chevron’s critics argue that this is a false dichotomy—that the real point is that Congress ought to be forced to be clear in all of its delegations to agencies.

There are somewhere north of 430 federal agencies; even if Congress devoted one calendar day each year to one agency, it wouldn’t get to all of them. Thus, the debate in the typical case is usually going to reduce to a choice between leaving the power to resolve the interpretive dispute to the agency’s reasonable discretion or to the courts. Whatever the pros and cons of the two sides in that debate, it’s clear that the case for the courts in that situation is not about increasing democratic accountability.

Vladick also points out that–with respect to democratic accountability– we vote for the President, who can directly control his subordinates. (Although he does’t mention it, no one votes for federal judges.)

French admits that agencies regulate complex businesses and industries, and that they “possess a level of expertise that’s clearly beyond the capabilities of Congress.” He objects to Chevron’s required deference because, in his opinion, it gives the Executive branch too much power. 

It’s an abstract argument for a very non-abstract problem.

Let’s get real: A rule requiring judges to “defer” (not “buckle”) to agency decisions when those regulations pass a “reasonableness” test is absolutely necessary in a world where government agencies deal with increasingly complex, highly technical issues that judges simply lack the expertise to decide.

Experts may get things wrong, but I don’t want Aileen Cannon deciding how many parts of arsenic per million should be allowed in the nation’s waterways, or Matthew J. Kacsmaryk  invalidating more FDA regulations.

In a war on knowledge, we’ll all suffer.


  1. It is important to know what organization is propping up this case. It is Charles Koch, among others who are deniers of any law or rule that would regulate their businesses.
    If I had the money to take the SCOTUS on a vacation or buy them a camping van, or buy their mothers a house, I would do so. I don’t, so all I have to use to persuade them to decide this case, and others, are my words. I hope they will decide to keep the Chevron Rule as it is.
    I am not holding my breath.
    Do we, as simple ordinary citizens, have any method to contact the members of the Court and express our opinions?

  2. Another reason for term limits in all aspects of government. That way maybe the principals would devote themselves to tasks at hand, and stop with the power grabs and TV time!

  3. Was the lawsuit filed by monied business interests that want more, or perhaps complete, control of their businesses and few, if any, regulations to reduce their profit margins?

    Is Koch Industries involved?

  4. Since it seems too many judges in federal courts have political positions that they support, handing more power to these inept buffoons would accelerate the decline of democracy.

  5. Per Robert Reich this morning: “Don’t gripe, whine, or kvetch about how awful Trump and his Republican enablers are. Or about how ineffective Biden and the Democrats are in communicating how bad Trump and his Republican enablers are. None of this will get you anything except an upset stomach or worse.” Head for the upside….ACTION

  6. Ignoring the direct harm to countless people seems to be one of the primary objectives of these far-right endeavors. The victims of air and water pollution, product safety regulations, and a host of other expert-generated standards, are diffuse, relatively vulnerable, and not as well-heeled as the proponents. This is an attack on them.

  7. “Can Taylor Swift make the Super Bowl from her Tokyo tour? Fans do the math.” Headline in the Washington Post today. Why policy is furthest from voters’ minds – too much fun elsewhere! SAD

  8. Chevron deference is absolutely required. Imagine the EPA scientists (or CDC scientists, …) link a particular chemical to cancer and other dire illnesses, something like C-8, or PFOA, or PFOS, or any other dangerous “forever chemical”. These chemicals can make companies billions, just ask Dupont. Now look at the way politicians treat the science around climate change, and imagine _they_ are the ones determining _when_ they might look into the issue, and if they want to do anything about it.

    And even if congress did do something, but then the agency determined that their investigations meant a change was needed in the guidance and regulation, then congress would need to do something again. And who can’t hear them ask how the data could be trusted _this_ time if they were wrong about the data last time? Because, of course, they willfully misunderstand how science works.

    It would be like letting Donald Trump determine the course of treatment for Covid. If not much, much worse.

    Honestly, this topic is _so_ critical, and the general misunderstanding of how critical it is infuriates me.

    So, French is wrong in every way. Even if congress were working perfectly, this _still_ shouldn’t be something they determine.

  9. “The answer …is to fix Congress.” Of course it is and only we the people can do that. If we don’t vote idiocy out and sanity in, instead of getting what we want, we will get what they want us to have. This election cycle, that means voting a straight Democratic ticket. It is the best way to protest. A vote not cast is a voice silenced.

  10. The goal of this legal campaign is to completely hobble all functional activity of any executive department whatsoever, by requiring that it be specified in detail by a Congress that can’t find it’s own ass with both hands, being utterly hamstrung by hyperpartisanship, showboating for hyperpartisan TV channels, immovable partisan gerrymandering, and fossilized parliamentary rules, including the Senatorial filibuster, which mean that nothing can ever be passed except with a 2/3 majority in the Senate.

    Then the would-be dictator can proclaim “See, democracy doesn’t work! Only I Can Fix It!” and call for the Constitution to be “terminated”.

  11. “The Supreme Court is currently hearing a case that’s likely to overturn or eviscerate something called the Chevron Doctrine. That doctrine requires courts to “defer” to an agency’s interpretation of an ambiguous statutory delegation.”

    When I worked for a living, a common corporate directive was based on the reality that every piece of work is variable when measured close enough, and the goal is continuous reduction in the span of that variability. The program is called “Six Sigma,” after the statistical representation of world-class minimum variance.

    We have a law-making process. Sadly, Republicans have outsourced the work of doing it to billionaire-funded ALEC. ALEC purposely fills laws with loopholes so big that oil tankers and Brinks money delivery trucks can fit through them.

    Executive Agencies are left with enforcement of Laws purposely made vague by a Legislative Branch which relies on the Executive and Judicial Branches to make them specific.

  12. We need to elect more scientists to Congress and let them evaluate what steps are required to solve problems. Check out the 314 Action Fund and donate.

  13. We’ve seen how well the Supreme Court, state legislatures, and Governors have dealt with women’s reproductive health. In a word – “worse”. They don’t understand basic biology. They believe contraception is abortion and want to outlaw it too. A U.S. Senate candidate in Missouri thought women’s bodies had a way of negating pregnancy caused by rape. Several years ago, an Indiana legislator thought women could get pregnant from hot tubs. When asked if he knew what women had to do in a hot tub to get pregnant, the legislator did not.

    The Koch Brothers, Big Pharma, huge manufacturers of all sorts, and others believe they have found a way to circumvent scientific regulators and avoid regulations which protect the public in order to increase profits. These manufacturers can just afford top flight lawyers to take all such cases to court, tying up safety regulations and products for years in the meantime. I don’t want to drink dangerous water or take untested prescription meds or drive an unsafe car or ride in an unsafe plane. Give me regulation by experts in their field every time rather than decisions by those who pursue profit at the expense of consumer safety. That’s the road to ruin and lost lives.

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