Beyond Marbury: the executive's power to say what the law is.

• Author: Sunstein, Cass R.
• Position: Symposium on Executive Power

ESSAY CONTENTS INTRODUCTION I. MARBURY, COUNTER-MARBURY, AND THE NEW DEAL A. Interpretation as Policymaking 1. Law and Policy 2. Behind Chevron B. Chevron's Fiction: Delegation, Realism, and Institutional Competence 1. Fiction 2. Realists and Realism 3. The New Deal and Beyond 4. Vacillations and Counterarguments C. The Real World of Chevron and "Policy Spaces" II. MARBURY'S REVENGE? A. Chevron Step Zero (with a Note on Deference to the President) B. Pure Questions of Law C. Jurisdiction D. Major Questions E. Nondelegation Canons and the Limits of Executive Power CONCLUSION INTRODUCTION

Consider the following cases:

1. Under the administration of President Jimmy Carter, the U.S. Department of the Interior adopted a broad definition of what it meant to "harm" a member of an endangered species. (1) A majority of the Supreme Court rejected a challenge to the Carter-era regulation (2) over a dissenting opinion by Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas. (3)

2. Under the administration of President Bill Clinton, the Food and Drug Administration (FDA) asserted authority over tobacco and tobacco products. The Supreme Court invalidated the FDA's decision. (4) Justice Breyer wrote a dissenting opinion, joined by Justices Stevens, Souter, and Ginsburg. (5)

3. Under the administration of President George W. Bush, the Environmental Protection Agency (EPA) rejected a petition to issue regulations to control the emission of greenhouse gases from motor vehicles. (6) Environmental groups and others challenged the EPA's decision. The court of appeals rejected the challenge over Judge Tatel's dissent. (7)

   In each of these cases, the relevant statute seemed ambiguous, and statutory interpretation appeared to be driven by some combination of political values and assessments of disputed facts. It should be no surprise that when federal judges disagreed with one another in all three cases, their disagreement operated along unmistakably political lines--splitting the stereotypically liberal judges from the stereotypically conservative ones. (8) There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him.

   My major goal in this Essay is to vindicate the law-interpreting authority of the executive branch. This authority, I suggest, is indispensable to the healthy operation of modern government; it can be defended on both democratic and technocratic grounds. Indeed, the executive's law-interpreting authority is a natural and proper outgrowth of both the legal realist attack on the autonomy of legal reasoning and the most important institutional development of the twentieth century: the shift from regulation through common law courts to regulation through administrative agencies. In the modern era, statutory interpretation must often be undertaken, at least in the first instance, by numerous institutions within the executive branch. (9) For the resolution of ambiguities in statutory law, technical expertise and political accountability are highly relevant, and on these counts the executive has significant advantages over courts. Changed circumstances, involving new values and new understandings of fact, are relevant too, and they suggest further advantages on the part of the executive.

   Recognition of the executive's interpretive power fits well with the institutional judgments that are embodied in the post-New Deal willingness to embrace presidential authority, including the varied forms of administrative power that are exercised under the President. I shall suggest that recognition of the executive's interpretive power has the same relationship to the last half of the twentieth century that Erie Railroad Co. v. Tompkins (10) had to the first: an institutional shift in interpretive power brought about by a realistic understanding of what interpretation involves. In short, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (11) is our Erie. When courts resolve genuine ambiguities, they cannot appeal to any "brooding omnipresence in the sky"; (12) often they must rely on policy judgments of their own. Those judgments should be made by the executive, not the judiciary. (13) As we shall see, the shift from independent judicial judgment to respect for reasonable interpretations by the executive rests on the same realistic commitments that led the federal judiciary to abandon "general" federal common law in favor of respect for state law.

   1. MARBURY, COUNTER-MARBURY, AND THE NEW DEAL

   Marbury v. Madison holds that it is "emphatically the province and duty of the judicial department to say what the law is." (14) The Court does not permit the executive to interpret ambiguous constitutional provisions as it sees fit. Courts construe the document independently, not with deference to executive interpretations of unclear provisions.

   Why is the executive not permitted to construe constitutional ambiguities as it sees fit? The simplest answer is that foxes are not permitted to guard henhouses, or, in other words, those who are limited by law cannot decide on the scope of the limitation. Marbury might be said to rest on a theory of "implicit nondelegation," to the effect that the Constitution is not properly taken to grant the President (or, for that matter, Congress) the final authority to interpret its ambiguities. That authority has been granted to the courts.

   This judgment--the foundation of Marbury--has not been uncontroversial. Foxes should not guard henhouses; but who is the fox? In a famous article, James Bradley Thayer contended that the Court should uphold democratic judgments unless they plainly violate the Constitution. (15) If we believe that the interpretation of ambiguous constitutional provisions calls for judgments of policy and that democratic institutions are in a particularly good position to make those judgments, then Marbury is indeed vulnerable. Suppose that questions of political morality underlie judgments about the legitimacy of discrimination or the scope of free speech. (16) If so, it is certainly reasonable to say that constitutional ambiguities should be resolved by those who are most accountable. But our constitutional tradition has generally rejected Thayer's view, apparently on the theory that by virtue of their insulation, courts have comparative advantages in the interpretive domain. (17)

   It should be easy to see how this view might be transplanted to the arena of ordinary statutory law. Perhaps statutory law has the same relationship to the executive as the Constitution has to the government in general. If foxes are not permitted to guard henhouses, perhaps the executive ought not to be authorized to interpret the scope of statutes that limit its authority. And indeed, administrative law doctrines were long built on precisely this assumption, (18) which continues to play a role in contemporary law. (19) As we shall soon see, Chevron selects other foundations.

   1. Interpretation as Policymaking

   The Administrative Procedure Act (APA), (20) the basic charter governing administrative agencies, was enacted in 1946. The governing provision of the APA says that the "reviewing court shall decide all relevant questions of law, [and] interpret statutory provisions." (21) At first glance, this provision appears to reassert the understanding that questions of statutory interpretation must be resolved by courts, not the executive. (22) Although many post-APA decisions seemed to embrace this understanding, (23) there were important contrary indications, in which courts suggested that agency interpretations would be upheld so long as they were rational. (24)

1. Law and Policy

   The law remained complex and confused until 1984, when the Court decided Chevron. The case involved an ambitious effort by the EPA to increase private flexibility under the Clean Air Act. (25) More particularly, the EPA redefined "stationary source" under the Act so as to include an entire plant, rather than each pollution-emitting unit within the plant. Upholding the rule, the Supreme Court created a novel two-step inquiry for assessing agency interpretations of statutes. The first inquiry is whether Congress has directly decided the precise question at issue. (26) If Congress has not, the second inquiry is whether the agency's interpretation is "permissible," which is to say reasonable. (27) In the Court's view, Congress had not forbidden a plant-wide definition of "source"; hence, the EPA could supply whatever (reasonable) definition it chose.

   Strikingly, the Court did not discuss the language or history of the APA. It did note that Congress sometimes explicitly delegates law-interpreting power to agencies. (28) But the Court could not, and did not, contend that the relevant provision of the Clean Air Act contained any such explicit delegation. The Court referred to the possibility that Congress might have wanted the agency to strike the appropriate balance with the belief "that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so." (29) But lacking any evidence on the question, the Court did not say that the EPA was the beneficiary of an implicit delegation here. On the contrary, it said that Congress's particular intention "matter[ed] not." (30)

   Instead the Court offered two pragmatic arguments: judges lack expertise and they are not politically accountable. In interpreting law, the agency may "properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is...." (31) The Court was alert to the fact that it was reviewing a decision made by the Reagan Administration that had altered the...