Gaming the Chevron Doctrine?

Gaming the Chevron Doctrine? By Kent Barnett, Christina Boyd & Christopher Walker
University of Georgia Working Paper, June 2017, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2984302

Abstract: Do federal circuit courts consistently apply Chevron deference's framework when reviewing agency statutory interpretations? Or do political dynamics result in courts gaming the Chevron doctrine? To answer these questions, we empirically analyze circuit-court decisions from 2003 until 2013 that review agency statutory interpretations. Our results - from the largest and most comprehensive database of its kind - confirm longstanding intuition and earlier, more limited studies: courts do not consistently apply Chevron. Our findings, nevertheless, offer some surprising insights into the political dynamics of applying Chevron. When courts reviewed liberal agency interpretations, all panels - liberal, moderate, and conservative - were equally likely to apply Chevron. But when reviewing conservative agency interpretations, liberal panels applied Chevron significantly less frequently than conservative panels. Contrary to limited prior studies, we find no evidence of "whistleblower" or disciplining effects when judges of different judicial ideologies comprised the panel. Viewed together, our results provide important implications for the current debate on whether to eliminate, narrow, or clarify Chevron's domain.

Keywords: Administrative Law, Deference, Judicial Review, Chevron, Skidmore