Deference and Bias Aren’t the Same Thing

Last week, the for-profit college trade association sued the U.S. Department of Education in federal court in an attempt to prevent the department from implementing the “gainful employment” regulatory crackdown on the industry. But as they acknowledge, the odds are against them:

The career college group’s lawsuit faces an uphill climb. Several legal experts said, and Miller acknowledged, that federal courts give executive branch agencies broad deference to issue and carry out regulations, and historically show “a definite bias in favor of the agency,” as Miller put it, when affected parties challenge executive branch regulatory efforts.

“Bias” is not the right word. In adjudicating cases like this, federal courts apply a concept known as “Chevron deference,” after the 1984 Supreme Court decision in the case of Chevron USA vs. Natural Resources Defense Council. The key issue for a court to determine under Chevron is how specific Congress was in writing the law whose interpretation by the agency is in dispute. If Congress was very specific, it’s reasonable for the court to decide whether the agency is interpreting that specific language correctly. If, however, the language is broad or vague, the court should defer to the agency’s interpretation. Thus, “Chevron deference.”

And that’s the way it should be. People elect members of Congress who create federal agencies, write laws, and grant those agencies power to interpret those laws via a specific process involving public comment and based on the judgement of experts in an administrative branch the head of which is also elected. Someone has to make these decisions and this process is far more transparent and publicly accountable than leaving things in the hands of non-expert judges with lifetime tenure. If you don’t like the gainful employment rules you can take your grievance to the ballot box in November 2012.

So the key legal issues that will debated under the lawsuit won’t be whether gainful employment is a good or bad idea per se, but whether the department followed proper procedures and acted lawfully under the powers granted to it by Congress. Of course, anyone who practices administrative law will tell you that it’s never that simple and that you’re a lot better off with a panel of judges that agrees with you on the policy merits than one that doesn’t. But overall it seems pretty obvious that the phrase “gainful employment” is indeed both broad and vague and the Justice Department has really good lawyers on staff who are stone-cold experts in making Chevron deference arguments. So assuming the department didn’t screw up procedurally it should probably win the case.