Deference Conservation - FOIA's Lessons for a Chevron-less World

John C. Brinkerhoff Jr. & Daniel B. Listwa, 71 Stan. L. Rev. 146 (2018)

In SAS Institute, Inc. v. Iancu, the Supreme Court entered the next chapter in the long-winding debate over Chevron deference, which instructs courts to defer to an agency’s reasonable interpretation of its substantive statutes.  Writing for a five-member majority, Justice Gorsuch refused to affirm the doctrine, noting portentously that “whether Chevron should remain is a question we may leave for another day.”  While defending the doctrine, Justice Breyer’s dissent declined a full-throated endorsement, instead classifying it as a simple “rule of thumb, guiding courts in an effort to respect that leeway which Congress intended the agencies to have.”  By teeing up a debate on the future of Chevron, Iancu calls attention to a fundamental question: What would it mean to do away with agency deference?  Both Congress and the courts have debated deference as though it were amenable to easy intervention.  Prior to Iancu, Justice Thomas and then-Judge Gorsuch both questioned Chevron’s constitutionality.  After Iancu, Justice Kennedy called for the Court to “reconsider . . . the premises that underlie Chevron,” accusing the doctrine of producing “reflexive deference.”

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This Essay offers a modest contribution to this debate.  Rather than speculating from current usages of Chevron, it takes the novel approach of looking to another area of administrative law where courts already apply de novo review: Freedom of Information Act (FOIA) litigation.  FOIA litigation reveals that those who argue that abrogating Chevron would have limited practical effect are right—but not for the reasons they think.  In the FOIA context, rather than deferring to agencies on matters of statutory interpretation, courts have shifted deferential treatment to other aspects of litigation.  The result is that the government wins 90% of the time, but the de novo standard is formally maintained.

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