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Today’s hearing focuses on whether the Supreme Court’s articulation of judicial deference in Chevron is a concept that should be retained in federal administrative law. I believe the Chevron doctrine should be retained for several reasons.

To begin with, enhanced judicial review would make rulemaking even more costly and time-consuming for agencies.

The federal rulemaking process is already deeply ossified.

As the Nation’s leading administrative law scholars have long-observed, agency rulemaking is hampered by burdens imposed by both the courts and Congress.  Indeed, Professor Richard Pierce, one of our witnesses today, noted more than 20 years ago that the “the judicial branch is responsible for most of the ossification of the rulemaking process.” 

Heightened judicial review would only worsen this problem because it would force agencies to formulate even more detailed factual records and explanations. 

Enhanced judicial review could also have the perverse effect of undermining agency accountability and transparency.

It could encourage agencies to conduct rulemaking out of the public view, to issue guidance documents in lieu of rulemaking, or to cause them to avoid rulemaking altogether. 

I am also concerned that enhanced judicial review will undermine public participation in the rulemaking process.

As the nonpartisan Congressional Research Service has observed, “[p]ublic participation in agency decision making is highly sensitive to cost and delay” and applying greater judicial scrutiny of agency rulemaking will favor those who can afford these greater costs. 

Large corporate interests – which are accountable only to shareholders and devoted to maximizing profits – already have the edge with their vast resources to bury an agency in paperwork demands and litigation with a goal of weakening regulatory standards.

Rather than providing even more opportunities for the voices of corporate interests to prevail, we should be considering ways to ensure that the voices of the public are strengthened in the rulemaking process. 

Finally, enhanced judicial review would encourage judicial activism.

A less deferential judicial review standard would allow judges to effectively make public policy from the bench while lacking the specialized expertise that agencies possess.

The Supreme Court has had numerous opportunities to expand judicial review of rulemaking, but it has consistently rejected this approach.  This reflects its long-held belief that generalist courts lack the subject-matter expertise of agencies, are politically unaccountable, and should not engage in making substantive determinations from the bench.

Enhanced judicial review, on the other hand, would allow generalist courts to impose their personal policy preferences.

It is ironic that the Majority – which has long decried “judicial activism” – now seeks to give the judiciary a greater role in agency rulemaking.

And, what would be the impact of slowing down the rulemaking process?  It means that rules intended to protect the health and safety of American citizens would take longer to promulgate and become effective. This means a delay for regulations that protect the quality of the air we breathe and the safety of the water we drink, and the food we consume. 

In closing, I thank the witnesses for being here today and I look forward to hearing their testimony.