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In this video, at 11:20 Justice Scalia says:

Congress created a series of agencies insulated from presidential control

In the same video, at 57:06, in answering a question about the Chevron doctrine, Justisce Scalia says:

The question is: if I think that agencies are not such doggone experts, why should I defer to them this way?

I'm not deferring to them because they are experts. I'm deferring to them because their President, who ultimately controls them, has been elected.

  1. Doesn't the last statement contradicts the first one? Are agencies controlled by the President or insulated from his control?

  2. How much control of The President is enough for a textualist to accept Chevron doctrine? What if he could hire them but not fire them? What if he could suggest them what to do but not order them what to do?

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Doesn't the last statement contradicts the first one? Are agencies controlled by the President or insulated from his control?

These statements aren't contradictory. They just reflect a somewhat complex reality (although the new post-Scalia ultra-conservative supermajority on the U.S. Supreme Court has pushed the notion of a "unitary executive", a long time conservative goal, that casts doubt on the constitutional validity of the structures discussed below that previously went unchallenged).

Especially starting around the time of the New Deal (the 1930s), Congress started to vigorously utilize the concept of an "independent agency" such as the National Labor Relations Board, the Securities and Exchange Commission, the U.S. Postal Service Board (formed in the 1970s), Fannie Mae, Freddie Mac, the Tennessee Valley Authority, and myriad other "alphabet agencies." (The Federal Reserve Board was one the first). Congress also experimented with structures like that of the Federal Bureau of Investigation (the FBI) whose director serves for a seven years term, even though the director is a single person rather than a collective board.

Generally speaking, these agencies are run by the Presidentially appointed and U.S. Senate confirmed directors or boards with appointee who serve for fixed terms. As Presidential appointees, they are ultimately controlled by the Presidency as an institution, even if not by the current sitting President. But, since these appointees have fixed terms of office and aren't merely employees at will who may be fired on demand by the President like cabinet secretaries, these appointees have some measure of insulation from direct Presidential direction on a day to day basis in the minutia of decision making.

How much control of The President is enough for a textualist to accept Chevron doctrine? What if he could hire them but not fire them? What if he could suggest them what to do but not order them what to do?

The Chevron doctrine really has nothing to do with the amount of authority that the President exercises over independent agencies and the civil service.

Instead, the Chevron doctrine is a separation of powers doctrine that provides that courts should defer to the executive branch (which is ultimately directed by the President, who has near absolute authority over agencies in some cases, and less authority over agencies in other cases), rather than interpreting laws from a blank slate, in cases where a federal agency has adopted an authoritative interpretation of a federal law that is not precluded by a fair reading of the statue in question, even if the court would have interpreted the statute differently in the absence of federal agency input.

The Chevron doctrine tilts the balance between courts and the President in favor of the President, making the President stronger than the President would otherwise have been in the absence of this doctrine. (And, keep in mind that all regulations and litigation of the federal government goes through the Justice Department, which the President does directly control, to a great extent, even when agencies are independent and have significant autonomy.)

The authority of the President to direct tenured civil servants who are not political appointees who can be hired and fired at will, or with U.S. Senate approval, is an entirely different issue with far less of a constitutional dimension until the last couple of years when a conservative supermajority captured the U.S. Supreme Court and has tried to push the non-textual and non-originalist "unitary executive" doctrine.

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    The Chevron doctrine really has nothing to do with the amount of authority that the President exercises -> but the judge is deferring to the President because the latter is elected, while the judge is not. So if the President fully controls the agency, it means that the agency is controlled ultimately by the people and so we should fully defer to it. If the agency is insulated from the President, it is not accountable to the people and so we should not defer to it, no? Commented Jan 3, 2022 at 16:46
  • @robertspierre The Chevron doctrine apples to all government agencies, whether indirectly controlled by the elected President through periodic board or director appointments, or directly controlled through a line of political appointees who may be dismissed at will. Since SCOTUS didn't distinguish between the two kinds of agencies when it created the doctrine, there is no legal distinction between the two in U.S. law. Theories about why the law should be different are the stuff of law review articles, not Law.SE.
    – ohwilleke
    Commented Jan 3, 2022 at 17:03
  • @robertspierre Also, both Chevron and independent agencies are independently facing reconsideration in the U.S. Supreme Court right now. lawliberty.org/…
    – ohwilleke
    Commented Jan 3, 2022 at 19:37

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