The American Bar Association Section of Administrative Law and Regulatory Practice held their annual Administrative Law Conference beginning on October 29, 2015. The George Washington University Law Review (Law Review) hosted one of the opening breakout sessions, the journal’s Annual Review of Administrative Law. This year, the panel was named primarily for the three articles forthcoming in the Law Review that were discussed by the panelists: Chevron Bias, Preambles as Guidance, and Oversight of Agency Enforcement Discretion.
Law Review Editor-in-Chief, Dane Shikman, began the event with introductory remarks, and introduced the moderator for the panel, administrative-law expert, Professor Emily Hammond. Professor Hammond offered brief remarks and introduced the first panelist, Professor Kevin Stack.
Professor Stack, a professor and Associate Dean for Research at Vanderbilt University Law School, spoke about his article, Preambles as Guidance. Professor Stack began by introducing the audience to the idea that preambles can serve as more than legal justifications of a regulation, but as guidance to the agency and judicial system alike. He proffered four ways in which a preamble can serve as guidance, through: (1) the articulation of the purpose of the rule, which demonstrates scope, (2) a section-by-section analysis of the regulation, which provides interpretive commentary to the remainder of the text, (3) guidance in response to the comments in the regulation, and (4) providing examples. In the remainder of his discussion, Professor Slack discussed the preamble as a privileged source for statutory interpretation, asserting that they may have a stronger claim for judicial deference than other later-in-time forms of guidance. He further addressed concerns surrounding preloading of the preamble and also highlighted the efficacy of a section-by-section analysis in preambles.
Professor Rachel Barkow, a professor at NYU School of Law, spoke next of oversight of agency enforcement mechanisms and the level of discretion agencies possess regarding enforcement. She stressed the fact that agencies discretion of when and how to use their enforcement capabilities is subject to very little judicial oversight. Professor Barkow next discussed ways in which when an agency is being set up, how enforcement can be shaped by first determining if an agency is likely to under enforce, over enforce, or selectively enforce it’s rules and regulations. She subsequently discussed mechanisms by which enforcement discretion can be addressed after an agency has already been created, such as civilian oversight through board membership. Professor Barkow concluded by emphasizing the fact that this subject is one that deserves a great deal of attention, precisely because there is so little judicial oversight in the area of discretion surrounding agency enforcement mechanisms.
The final panelist to speak was Professor Philip Hamburger, a professor at Columbia Law School. Professor Hamburger discussed his article, entitled Chevron Bias. His article examines the Constitutional issues behind deference based on Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc, which requires that judges defer to an agency’s reasonable interpretation of its authorizing statute. Professor Hamburger laid out two primary Constitutional issues: independent judgment and systematic bias. The first issue regarding independent judgment concerns a judge’s constitutional duty to exercise independent judgment of the law. Professor Hamburger questioned the idea that if a judge is deferring to an agency’s interpretation of a statute, how could he be considered to be exercising independent judgment of the law? He next questioned the due process violation of deferring to agencies, which he considers to be a systematic bias because of the required deference given to a party in the case. The Fifth Amendment prohibits systematic bias, and yet if a judge maintains a relationship to a party in a case based on judicial precedent, how can it not be considered a systematic bias?
Professor Hamburger went on to say that Chevron is dead and provide two reasons why. First, he asserts, Chevron is dead because of the first Constitutional problem: judges have to exercise independent judgment and Chevron does not permit them to do so. Second, he argues, it’s definitional in that there is a duty of judgment that comes with judicial power, and judges are no longer exercising that duty when they defer to the agency’s statutory interpretation. Professor Hamburger concluded by declaring that Chevron deference is misnamed; it should be referred to as Chevron bias.
At the conclusion of the panelists scripted remarks, Professor Hammond moderated a question and answer panel, engaging the audience that had filled up the room. Several questions were asked of each panelist, including a question asked by Law Review’s Senior Project Editor, Max Weiss, to Professor Barkow regarding how it is possible to determine before an agency’s creation whether the agency will over enforce, under enforce, or selectively enforce its rules and regulations. She responded that when looking at an agency’s statute and the politics surrounding the agency’s creation, it can actually be fairly easy to predict.
The panelists commented on distinct areas of administrative law offering three different perspectives and provided a fantastic survey of contemporary issues in the field. The George Washington Law Review looks forward to the discussion next year’s panel will bring!
Post authored by On the Docket Fellow Talya Bobick.
