Chevron Deference
When making rules, federal agencies have to point to specific statutes that give them the authority to make those rules. In other words, they have to interpret laws to understand what Congress has told them to do. Under the Chevron doctrine, when courts review a federal agency’s interpretation of a statute it administers, they must first determine whether the statute is silent or ambiguous on the question at hand; if yes, courts must defer to the agency’s interpretation if it is reasonable. Since the Supreme Court decided Chevron in 1984, it has become one of the most cited opinions in American law. In recent years, it has also become one of the most controversial.
Over time, Chevron citations have decreased, as have instances in which courts actually defer to the issuing agency (i.e., accept the agency’s reasonable interpretation of an ambiguous statute). In addition, when looking at the appointing President of an opinion’s author, noticeable differences emerge. In many respects, these differences reflect the arc of Chevron deference itself—citations rise through Carter and Reagan appointees, peak with H.W. Bush appointees, and then steadily decline through Clinton, W. Bush, Obama, and Trump appointees. Perhaps the most noteworthy data point here is the stark difference between judges appointed by President Trump and those appointed by previous presidents.
Remand Without Vacatur
When a court remands a rule without vacatur, it leaves the rule in place while typically providing the issuing agency with an additional opportunity to address a flaw in the rule or rulemaking process. Reasonable minds could differ over how to treat this remedy in terms of agency wins and losses. Is it a win because the rule wasn’t totally cast aside? Or is it a loss because the court found that the agency made an error? Our study coded all controlling opinions based on a court’s conclusions about the challenged provision(s) rather than the remedy ordered, which means that remands without vacatur were coded as either agency losses or mixed results. But some readers may find deeper analysis of this data interesting.
Across all administrations, roughly 28.1% of overall agency losses (i.e., losses and mixed results combined) by controlling opinions resulted in remands without vacatur. Here, too, however, results differed by administrations. The drop for the Trump Administration could suggest that courts became less willing to use the remedy or that the flaws found in the Trump Administration’s major rules were more likely to cause courts to vacate (or totally strike down) these rules rather than remand for the agency to fix them.
Partisan Trends
Many empirical studies have examined whether there is a correlation between agency win rates and the party of the President who appointed the reviewing judge(s).This study identified:
(a) the party of the individual judge’s or majority’s appointing President(s), and
(b) the opinion author’s appointing President.
Agencies fared similarly before Republican and Democratic appointees, with win rates just slightly below the overall average by controlling opinion (56.1%). Agency win rates were higher (and slightly above the overall average) when the appellate majority was mixed (i.e., at least one Republican and one Democratic appointee) (61.4%).
Looking at agency win rates by the opinion author’s appointing President reveals a mixed picture.
