Chevron and agency norm-entrepreneurship.

AuthorEskridge, William N., Jr.
PositionSymposium on Executive Power

If Congress has delegated lawmaking authority to an agency and has not specifically addressed an issue covered by the statute, the Supreme Court's Chevron doctrine requires judges to defer to reasonable agency interpretations. (1) Justice Scalia maintains that deference is grounded, at least in part, in the executive branch's own lawmaking authority; hence, judges should defer to virtually all agency interpretations not inconsistent with statutory plain meaning. (2) This Symposium reveals that Scalia's reading is gathering academic support. (3) Yet the Court continues to reject his understanding of Chevron, as illustrated by the recent decision of Gonzales v. Oregon. (4)

The Federal Controlled Substances Act of 1970 (CSA) makes it a crime to possess or distribute addictive or psychotropic drugs. (5) The Act requires doctors to register before they can issue such controlled substances, and the Attorney General has the authority to deny registration when it would be in the "public interest." (6) In 1994, Oregon's legislature enacted a statute authorizing doctors to administer lethal drugs to terminally ill patients. (7) Concluding that Oregon's statutory regime involved wrongful use of controlled substances, Attorney General Ashcroft in 200l issued a Directive interpreting the CSA to bar such medical practices, effectively preempting Oregon's euthanasia law. (8) Ashcroft's interpretation is an example of agency norm-entrepreneurship, the reasoned application of fundamental norms by agencies when they apply statutory directives.

Over Scalia's objections, the Supreme Court rejected Ashcroft's interpretation in Oregon. Because there had been no congressional delegation, the Court found Chevron deference inapposite; the majority further ruled that the "public interest" standards of the Act did not justify preempting state regulation of medical practices. (9) As Oregon illustrates, agencies have become an important situs for the expression and testing of public norms. We argue that their norm-entrepreneurship complicates the Chevron debate. When public values are implicated, the sharp rule-like edges of both the Chevron framework and Scalia's alternative will be fuzzier and more standard-like in practice.


    Traditional justifications for agency lawmaking (and judicial deference) sound value-neutral: Agencies fill in the details of statutory schemes based upon their expertise. Oregon illustrates how even these justifications are often normative, for they involve interpretation of statutory purposes and policies. The CSA's drug-control purpose is a great national policy, but its precise contours were sharply contested in Oregon. Ashcroft understood the CSA to reflect a nationalization of medical standards, (10) including the precept that doctors should "do no harm." Oregon viewed the statute's purpose more narrowly: to prevent doctors from encouraging drug addiction.

    Normative laws such as the CSA are now quite common; they include antitrust, civil rights, environmental, and other "super-statutes." (11) Super-statutes, rather than judicial articulations of the Constitution, are an increasingly important source of the fundamental rights Americans enjoy and those public values that we celebrate. Agencies have key roles in enforcing most super-statutes. They provide an indispensable forum for the application of foundational principles through deliberation by experts and public feedback over time. Examples include the Justice Department's antitrust guidelines, the EEOC's regulations implementing various civil rights laws, the EPA's regulations implementing the environmental nondegradation principle, and Ashcroft's Directive.

    Executive departments and agencies are also, increasingly, important forums for constitutional discourse. A dramatic example is the George W. Bush Administration's expansive understanding of the President's Article II powers and narrow interpretation of the Bill of Rights in its implementation of antiterrorism and domestic programs. (12) As the administration's interpretations of statutes authorizing the use of force against Iraq and regulating torture illustrate, executive branch constructions of statutes are often informed by constitutional norms as understood by those officials. (13) Ashcroft's Directive reflects the variety of sources from which the executive derives norms. Its conclusion that euthanasia is not a "legitimate medical practice" was based upon federal and state statutory consensus, professional medical opinion, and pro-life constitutional principles. (14)

    Administrative norm-entrepreneurship through statutory interpretation can enrich our national discourse about fundamental values. First, it offers opportunities for the application of reasoned and expert judgment to difficult issues that represent our national commitments. In value-laden debates, agency-type expertise can lower the stakes and improve decision-malting by providing factual grounding and consequences. Well-informed institutions, like agencies, are better able to cut away issues that should not be a matter of dispute and to reconcile colliding norms. (15) As Ashcroft read it, the CSA not only reflects America's struggle against drug abuse, but also nationalizes the regulation of medical practice. While controversial as applied to "assisted suicide" (Ashcroft's term) or "death with dignity" (Oregon's term), this nationalization norm reflects persuasive experience with federal regulation of health and medical issues. (16)

    Second, administrative norm-entrepreneurship may expand the constitutional reach of liberal values such as personal autonomy and individual flourishing. Judges only apply constitutional norms against state actors, but most abusive exercises of power are by private actors. The modern liberal state ought to protect...

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