CHEVRON ABROAD.

• Author: Bametf, Kent

INTRODUCTION 622 I. BECOMING, MAINTAINING, AND CHANGING CHEVRON 627 A. Chevron and Its Theoretical Foundations 628 B. The Deference Trinity 630 C. Chevron's Inevitability 633 II. FOREIGN APPROACHES TO JUDICIAL DEFERENC:E 636 A. Civil-Law Countries 637 1. The Limited German "Two-Step" 637 2. Angst Itahan Style 644 B. Common-Law Countries 648 1. United Kingdom and De Novo Review 648 2. Canada--Ever More American, Ever Less British 654 3. Australia and Anti-Chevron 659 III. APPLYINC; LESSONS FROM ABROAD 663 A. Chevron's Evitability 664 B. Chevron's Improvement 668 1. Expertise 668 2. Legislative Delegation 670 CONCLUSION 674 [M]uch of the discussion of political dntehpment has centered in recent years on the institutions of constraint--the rule of taw arid democratic accouritability. But before governments can be constrained, they have to generate the power to actually do things. --Francis Fukuyama (1) INTRODUCTION

The eminent political scientist Francis Fukuyama noted the inherent tension in ensuring that administrative agencies have freedom to act while maintaining their democratic legidmacy by remaining within their legal strictures. Nearly a century before him, British legal scholar A.V. Dicey resolved the tension by depriving agencies of any small-"c" consdtutional space within the British system. At most, agencies exercised some quasi-judicial power that courts kept within strict statutory bounds and reviewed to ensure "judicial fairness and equity. (2) In contrast, Canadian scholar D.M. Gordon accommodated some agency discretion within Dicey's rule-of-law paradigm. Gordon argued that courts shotild only consider whether agencies acted within their statutory jurisdiction--not whether they properly exercised their authority within that jurisdiction. (3) American law professor Walter Gellhorn, a contemporary of Gordon, summarized "the burning question" as "whether and how much a court could review (and, in reviewing, revise) administrative judgments." (4) At bottom, these scholars sought to strike the appropriate balance between promodng useful, expert agency action and limiting lawless, unaccountable agency behaviors. The story of administrative law in the United States--and elsewhere--is largely a never-ending odyssey to get this balance right.

Indeed, history and some modern practices demonstrate the danger of permitting either judicial control or agency discretion to run riot. For instance, limited judicial review and limitless legislative delegation to the executive gave foundation to the Nazis' rise to power in 1930s Germany. (5) On the flip side, extreme skepdcism of bureaucracy and overbearing judicial review in the Ukraine has stunted the maturation of Ukrainian agencies likely because they have little incentive to do a good job when courts second guess all agency decisionmaking. (6)

One tool in American administradve law to balance these concerns is the canonical Chevron doctrine. Chevron requires courts to defer to reasonable agency statutory interpretations when an agency interprets a statute that it administers, instead of having courts themselves decide the best meaning of the statute. (7)Its champions extol its purported virtues: it respects the legislature's delegation of interpretive primacy to expert agencies over policy choices inherent in legal inte[phi]retation; (8) it recognizes agencies' superior political accountability over unelected courts via congressional oversight and presidendal supervision; (9) it encourages national uniformity and stability in statutory interpretation; (10) and it midgates partisan judicial decisionmaking. (11) Nevertheless, this established doctrine is under siege. Its detractors decry its putative vices: it violates the Consdtution; (12) it permits statutory language to have more than one meaning; (13) its robust use encourages a more expansive and unchecked administrative state; (14) and its redculated complexity demonstrates its practical unworkability. (15) Accordingly, depending on one's view, either Chevron allows agencies a reasonable, but not boundless, space to make policy, or it permits agency lawlessness through judicial abdication.

Out of this debate, scholars and judges have proposed various reforms. Some have called for the courts to reconsider which preconditions must exist for Chevron to apply. (16) Some have called for rethinking or simplifying Chevrons two-step analytical process. (17) Some have called for abandoning it altogether--whether for pragmatic, (18) statutory, (19) or constitutional reasons. (20) Indeed, at least a majority of the Supreme Court Justices has expressed misgivings about Chevron's reach or very existence. (21)

Cutting through the din of this incessant controversy is a growing second-order contention--that, whatever its problems, Chevron is, to varying degrees, inevitable in a legal system with a large, complex administrative state. Although some marginal changes can improve the doctrine, Chevron reflects a holistic political-udicial settlement over how judicial review of agency statutory interpretations can recognize the limits of judicial prowess, agencies' epistemic advantage, and Congress's preference for administrative action. (22)

To evaluate Chevron's inevitability and its possible mutations, we consider in this Article how other mature legal systems approach judicial review of agency statutory interpretation. (Throughout this Article, references to "judicial review" mean review of agency statutory interpretation, unless otherwise indicated.) Few well-developed, stable governments mirror the United States' structure of government by having three separate branches and a presidential system. (23) Accordingly, we have concentrated on countries that share some of our governmental features: Germany, Italy, the United Kingdom, Canada, and Australia. All of the selected countries have parliamentary systems, and all but the UK have separation of powers enshrined in a written constitution. Germany and Italy provide civil-law examples, while the UK provides the common-law source for the American, Canadian, and Australian common-law systems. These comparisons permit us to determine whether civil-law and common-law systems have taken similar paths within and outside of each system. Moreover, it helps us consider whether positive consdtutional separation of powers might affect Judicial review.

In brief, we found that all of the compared countries face the same never-ending struggle between judicial review and agency discretion, although some of the countries struggle in only a narrow category of cases. But our theoretical and doctrinal comparative study indicates that these countries approach judicial review, to varying degrees, in different ways, limiting our ability to draw any relationship between governmental structure and deference.

Germany. Influenced by its conscious concern over the relationship between judicial abdication and its Nazi past, Germany has its own two-step deference doctrine that has a much more limited domain than Chevron. Deference in Germany is significantly limited to certain technical, scientific, or economic matters that the legislature has delegated to the agency.

Italy: Despite not subjecting rulemakings to judicial review, Italy, after tumultuous doctrinal shifts in the past few decades, has rejected judicial deference to agency statutory interpretations altogether for agency adjudication.

United Kingdom: The UK also generally rejects judicial deference, although it defers in some instances for "special" matters decided by entities that would be characterized as agencies under U.S. law.

Canada: Canadian judicial review comes the closest to Chevron with a default reasonableness review grounded on a legislative delegation theory whose domain has recently narrowed as the Supreme Court of Canada has adopted a more categorical approach. The nature of reasonableness review is highly faceted with procedural and substantive considerations.

Australia: Finally, although Australia is the only one of our studied countries to reject Chevron expressly, its High Court did so in dicta in a case that did not implicate agency legal interpretation. Moreover, Australia continues to have a very limited doctrine somewhat similar to Chevron when statutes expressly give agencies exclusive jurisdiction and limit judicial review, although it rarely applies in practice. (24)

After considering these foreign legal systems, we conclude that Chevron is not inevitable if we understand Chevron to mean either its current two-step formation or a judicial deference regime that fills a similar space. Italy and the UK, despite some indications to the contrary, are best thought of as having eschewed Chevron deference. Two countries with something similar to Chevron--Germany and Australia--give their deference doctrines significantly smaller domains than Chevron. Canada was the only country that we studied that had a similar form of deference. Moreover, Chevrons focus on agency authority to act with the force of law and statutory ambiguity is nearly always absent in other countries' deference doctrines.

Yet, our inquiry demonstrates that our compared countries, except for Italy (and perhaps Britain), leave some remaining place for deference. If Chevron is thought of as a metaphor for some kind of deferential space (even if significantly limited) for the area between law and policy. Chevron is more ubiquitous, if not inevitable. Canada likely has a similar place for deference as American courts, although the Supreme Court of Canada, unlike the U.S. Supreme Court, has recendy reaffirmed reasonableness review's accepted place in Canadian jurisprudence. Germany, however, has created a limited domain for deference: technical, special, or legislatively delegated matters. Even Italy--which has clearly forsaken all deference for agency legal interpretation--still uses deferential rhetoric, and its recent doctrinal instability...