The judicial perspective in the administrative state: reconciling modern doctrines of deference with the judiciary's structural role.

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The judicial perspective in the administrative state: reconciling modern doctrines of deference with the judiciary's structural role.

INTRODUCTION

Lawyers and scholars traditionally have viewed interpretation as a search for the best reading of an ambiguous legal text.(1) More recently, scholars have considered as well interpretation's "instrumental" effects on lawmaking,(2) highlighting the possibility that particular styles of statutory interpretation may have beneficial effects on legislatures by encouraging democratic deliberation, diminishing interest group influence, or inducing legislators to highlight their bargains in a statute's text rather than bury them in legislative history.(3) Moreover, while this scholarship on the broader influence of legal interpretation on lawmaking is relatively new, and empirical evidence of such a "feedback loop" is still somewhat sketchy,(4) the basic intuition that different approaches to interpretation might influence legislative behavior is by no means novel. Half a century ago, Justice Frankfurter observed that "[l]oose judicial reading makes for loose legislative writing."(5)

If scholars of statutory interpretation have thoroughly explored the notion that interpretive styles may influence lawmaking, they have largely, and incorrectly, assumed that judges will be the interpreters.(6) By the time scholars began to consider how judges could improve lawmaking--and to debate whether judges could legitimately adopt an "instrumentalist" approach to statutory interpretation(7)--the judiciary already had relinquished much of its interpretive power to administrative agencies.(8)

This article argues that modern administrative law's reliance on administrative agencies rather than judges to resolve legal ambiguity rests principally on a narrow vision of interpretation and becomes much more difficult to defend when the interpretive enterprise's broader, instrumental effects on lawmaking are taken into account.(9) Moreover, the article posits that judicial influence over legislative behavior is not simply the invention of modern scholars of statutory interpretation, but rather is an important component of our constitutional structure. The article thus identifies an overlooked tension between judicial deference to administrative agencies under modern administrative law and the judiciary's original, influential role in our constitutional design.

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,(10) the Supreme Court decided to defer to reasonable agency resolutions of statutory ambiguity--and to treat ambiguity as an "implicit delegation" of authority to agencies--largely because the Court believed that agencies were better equipped than judges to resolve interpretive disputes.(11) The Court reasoned that resolving interpretive disputes requires policy judgments and that judges lack the political accountability and subject matter expertise that equip administrators to make these policy judgments.(12) Under Bowles v. Seminole Rock and Sand Co.,(13) the Court has likewise deferred to administrators' interpretations of their own regulations.(14) The Court has reasoned that because interpretation of regulations may "entail the exercise of judgment grounded in policy concerns,"(15) it makes sense to transfer interpretive authority to administrators who are politically accountable(16) and sufficiently expert to make the relevant political choices with a sophisticated understanding of underlying policy considerations.(17) In both lines of cases, the Court has limited judges to determining whether a law is ambiguous and, if so, ensuring that the agency interpretation is reasonable.(18)

But if judicial deference to agency interpretations leads to more "legitimate" or "sensible" resolutions of interpretive disputes, these benefits do not come without a cost to our constitutional framework. Even if Chevron and Seminole Rock produce "better" results in particular cases, together they weaken judicial authority in a way that fundamentally alters the relationship between lawmaking and law interpretation in our constitutional framework. Indeed, some of the very qualities that render administrators better suited than judges to make difficult policy decisions under ambiguous statutes or regulations may make them ill suited to influence the behavior of those drafting the relevant laws.(19) Scholars have thus far overlooked the possibility that the very attribute of administrative agencies most often relied on to defend Chevron and Seminole Rock deference--political accountability--may also be the greatest shortcoming of judicial deference.

The possibility that politically insulated judges may be better suited than politically accountable officials to resolve statutory ambiguity is by no means new. Long before the rise of the modern administrative state, the framers and ratifiers of the Constitution (the "Founders") were acutely aware of the difference between interpretation by politically accountable and politically insulated officials, and they opted for the latter in securing judicial independen...

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