Kent Barnett
89 Geo. Wash. L. Rev. 1143
U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference—under which courts defer to reasonable agency statutory interpretations—violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, “to say what the law is” or requires judges to forgo independent judgment by favoring the government’s position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do—situates challenges to Chevron within the broad landscape of the Court’s current Article III jurisprudence.
A thorough study of Article III jurisprudence hobbles these blunderbuss Article III challenges to Chevron but leaves room for narrow attacks. Derived from the plurality in Northern Pipeline v. Marathon Pipe Line Co., a four-quadrant matrix informs Congress’s power to limit Article III adjudication or review. The quadrants concern public and private rights, each subdivided by claims Congress created and did not create. Chevron does not apply to the most contentious and perhaps most unsettled quadrant—private rights that Congress did not create—and it most often applies in the quadrant in which Congress almost certainly can limit de novo judicial review—public rights that Congress creates. That leaves two other quadrants—public rights that Congress did not create (including, for traditional reasons, criminal law) and congressionally created private rights—where Chevron sometimes applies. Chevron’s application in these latter two quadrants should give pause because the Court has more jealously guarded Article III adjudication there from congressional interference than with public rights that Congress created. Yet even within these two quadrants, other strands of Article III doctrine suggest that Congress has some space to limit de novo judicial review. By considering the full Article III landscape, this Article demonstrates the folly of a wholesale attack on Chevron and its destabilizing effects. Its critics should instead focus their efforts on discrete skirmishes.
