Chevron deference is a hot topic. There is growing criticism from judges and scholars against the view that courts should defer for the most part to agency readingsof statutes they are charged with implementing. I do not have a dog in this fight, but I did come across an interesting nugget recently for people who do care.
Many of you have heard this famous line from Charles Evans Hughes: “We are under a Constitution, but the Constitution is what the judges say it is.” Legal Realism run amok, right? But the context in which then-Governor Hughes made this off-the-cuff remark was in a speech attacking the notion that courts should exercise robust review over the decisions of administrative agencies. The speech concerned a bill in New York
that proposed creating a commission to regulate railroads. Here is the relevant passage from Hughes:
But when you deal with a railroad man who fairly and squarely meets you, you will find that he will agree that these powers are needed, supposing that abuses exist which would call them into action. The other night I was talking to such a gentleman, and when we got through, the practical result of all was this : I said to him : ” What you really want is a chance to go to the courts ? ” And he said: ” Yes, that is all there is about it.” That seemed to be the main point. A chance to go from the commission to the courts.
I have the highest regard for the courts. My whole life has been spent in work conditioned upon respect for the courts. I reckon him one of the worst enemiesof the community who will talk lightly of the dignity of the bench. We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution. I do not want to see any direct assault upon the courts, nor do I want to see any indirect assault upon the courts. And I tell you, ladies and gentlemen, no more insidious assault could be made upon the independence and esteem of the judiciary than to burden it with these questions of administration, questions which lie close to the public impatience, and in regard to which the people are going to insist on having administration by officers directly accountable to them.
Let us keep the courts for the questions they were intended to consider. When questions of property rights are involved, the constitutional right to hold property and not to be deprived of it without due process of law is involved; when, under the guise of regulation or authority to supervise railroad management, there is an assumption of arbitrary power not related to public convenience; when there is a real judicial question let the courts have it and every good citizen will stand aside and hope to see it decided fairly and with even-handed justice. When you deal with matters of this sort you may be sure that there will be a variety of questions, which, whatever the fact may ultimately be proved to be, can by astute lawyers be said to involve such judicial matters, and there will be abundant opportunity for review of everything that should be reviewed.
But to say that all these matters of detail which will be brought before the commission, matters requiring men to give their entire attention to the subject, toget their information in a variety of ways, to have hearings of those interested, and to deal with questions from a practical standpoint, should, at the option of the corporations, be taken into court, is to make a mockery of your regulation. And, on the other hand, if that policy should succeed, it would swamp your courts with administrative burdens and expose them to the fire of public criticism in connection with matters of this description, from which I hope they will be safeguarded.
You must have administration, and you must have administration by administrative officers. You cannot afford to have it otherwise. Under the proper maintenance of your system of government and in view of the wide extension of regulating schemes which the future is destined to see, you cannot afford to have that administration by your courts. With the courts giving a series of decisions in these administrative matters hostile to what the public believes, and free from that direct accounting to which administrative officers are subject, you will soon find a propaganda advocating a short-term judiciary, and you will turn upon our courts the final safeguard of our liberties that hostile and perhaps violent criticism from which they should be shielded and will be shielded if left with the jurisdictions which it was intended they should exercise.
Now obviously this passage does not address all aspects of the Chevron debate. Still, I think it gets at important parts of that conversation, such as public accountability and the politics/law distinction.