Chevron as a voting rule.

AuthorGersen, Jacob E.

INTRODUCTION LEGAL DOCTRINE AND INSTITUTIONAL PROBLEMS A. Problems, Soft Solutions, and Hard Solutions 1. Deference to Legislatures 2. Precedent 3. The Rule of Four 4. Appointments and Senatorial Deference B. General Tradeoffs 1. Aggregate Norms Versus Individual Norms 2. Calibration Versus Fuzziness 3. Certainty Versus Variance II. CHEVRON AS A VOTING RULE A. Chevron Rudiments 1. Rules and Rationales 2. Permissible Interpretations and Best Readings 3. Deference Regimes B. Aggregation: Solving Chevron Problems 1. Conceptual Problems 2. Psychological Burdens 3. Bias 4. A Note on Bias in the Lower Courts 5. Internalization Versus Aggregation C. Calibration 1. On Large Appellate Courts 2. In the Lower Courts D. Certainty 1. Predictability 2. Subjective Uncertainty III. COSTS AND OBJECTIONS A. Voting Theorems 1. May's Theorem 2. Supermajority Rules and the Status Quo 3. The Jury Theorem B. Single-Member Courts C. Chevron as a Voting Rule, Step Zero? D. Agency Flexibility E. Decision Costs F. Strategic Behavior 1. Circumvention Through Bargaining 2. Insincere Voting 3. Mixing Voting Rules 4. Litigant Effects G. Deference and Politics H. Supply-Side Issues 1. Judicial Supply 2. Congressional Supply CONCLUSION INTRODUCTION

Of central importance to administrative law and theory is the question of whether, and when, courts will defer to agency interpretations of law. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (1) the Supreme Court replaced earlier answers to that question with a new framework: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the Chevron framework has come under increasing strain. Doctrinally, there are many ambiguities and uncertainties about the nature of the inquiry at the first and second steps of Chevron, including questions about the admissibility and weight of various legal sources. (2) In practice, recent evidence suggests that Chevron's effect varies markedly with the ideological and political preferences of the judges who apply it. (3)

In what follows, we will suggest that these problems arise, in part, from a dubious premise of the Chevron enterprise, one that should be rethought. The dubious premise is that the legal system should adopt a doctrinal solution--the Chevron rule--for what is, after all, an institutional problem: the allocation of interpretive authority between agencies and courts when congressional instructions are absent or ambiguous. We explore an alternative, which is to cast Chevron as a voting rule, thereby institutionalizing deference to administrative agencies. The precise details of the voting rule might vary, and we will discuss different versions. To motivate the discussion, however, imagine a voting rule stating that when a litigant challenges agency action as inconsistent with an organic statute, the agency will prevail unless the judges, asking simply what the best interpretation of the statute is, vote to overturn the agency by supermajority vote--say, by a 6-3 vote on the Supreme Court, or by a 3-0 vote on a court of appeals panel.

Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. In the doctrinal version, judges must develop and internalize a legal distinction between the best interpretation of the statute and a reasonable interpretation of the statute.

For conceptual, psychological, and motivational reasons, this distinction is tenuous, even unstable. This should be unsurprising; the doctrinal solution requires judges to internalize a legal norm of deference, but it is accompanied by none of the traditional mechanisms that law uses to force decision-makers to internalize the consequences of their choices. Conversely, the principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from the whole set of votes, rather than an internal component of the decision rules used by individual judges. Casting Chevron as a voting rule has other benefits as well. A voting-rule version of Chevron would allow more precise calibration of the level of judicial deference over time, and, holding the level of deference constant, a voting rule of agency deference would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron.

We begin, in Part I, by laying out a distinction between legal doctrine and institutional rules. Part II explains the benefits of casting Chevron as a voting rule, while Part III examines the costs. Part II suggests that recasting Chevron as a voting rule would produce three major benefits: it would make agency deference an aggregate property of a multi-member panel's vote rather than a legal norm to be internalized by individual judges; it would allow more precise calibration of the level of agency deference and greater fine-tuning of the areas in which deference is to apply; and it would reduce the legal uncertainty that currently arises from the complexities of the Chevron framework. Part III turns to costs. We examine objections based on May's Theorem and the Jury Theorem; the problems of single-member courts; the uncertainty of the voting rule's triggering conditions; the effects of judicial precedent on agency flexibility; the costs of decision-making; the possibility of strategic behavior; the loss of positive byproducts of the doctrinal solution; and the unlikelihood that any institution would supply such a rule. Many of these objections, however, apply with equal force to the doctrinal version of Chevron; the rest are unpersuasive or irrelevant on their own terms.

  1. LEGAL DOCTRINE AND INSTITUTIONAL PROBLEMS

    1. Problems, Soft Solutions, and Hard Solutions

    In many domains, legal doctrine is developed by judges, lawyers, and commentators to solve institutional problems--for example, the allocation of power across different institutions or among different officials within the same institution. Thus the presumption of constitutionality for legislation allocates a measure of interpretive authority over the Constitution to legislatures; (4) the "clear error" standard of review allocates fact-finding competence to trial courts; (5) and the legal norm of precedent or stare decisis allocates decision-making authority from present judges to past judges, whose views control the judgment of the present on some questions.

    But legal doctrine is rarely the only possible solution to institutional deference problems, and it is not always the best solution. An alternative is to change the rules that govern the composition, powers, or voting mechanisms of the relevant institutions. We call these "hard" solutions, in contrast to "soft" doctrinal solutions. The relative costs and benefits of soft and hard solutions vary across contexts and over time. Our point is not that hard solutions are always superior, for they are not. What we do suggest is that hard solutions prove superior in many domains yet are frequently overlooked by lawyers.

    We consider here some examples of legal problems for which there is an important choice between soft and hard solutions. For manageability, and to hew closely to the Chevron issue, we confine ourselves to the choice between legal doctrine and voting rules, rather than other sorts of hard solutions.

  2. Deference to Legislatures

    The presumption of constitutionality for legislation, according to which courts should uphold legislation if there is a reasonable argument for its constitutionality, was advocated by James Bradley Thayer and many later judges and commentators, including Justices Oliver Wendell Holmes and Felix Frankfurter and Judge Learned Hand. (6) The strength of the doctrinal presumption, however, has waxed and waned over the course of American constitutional history. Today, many believe that the presumption has withered away, particularly in certain contexts. (7) A hard alternative periodically surfaces in the form of proposals that the Supreme Court, and perhaps lower courts, should use (or be required to use) a supermajority rule to invalidate statutes on constitutional grounds. (8) A voting rule of this sort would build Thayerian deference into judicial decision-making at the aggregate level of the whole court, rather than urge individual judges to internalize deference as a legal norm.

    1. Precedent

      Just as judges might defer to legislatures when there is reasonable doubt about legal questions, so too judges might and do defer to past judges when there is reasonable doubt about legal issues. The doctrine of stare decisis has many formulations and complexities, but a simple version requires judges to follow horizontal precedent--the previous decisions of the same court--unless the precedent is clearly erroneous. (9) This is a soft solution; a hard alternative would be to say that the precedent decision must be followed unless overruled by a supermajority vote or even a unanimous vote of the later court.

    2. The Rule of Four

      The previous examples involved legal norms that have been embodied in doctrine but that might also be embodied in voting rules, with a different set of costs and benefits. Here we provide the converse example: a voting rule that might be recast as a legal doctrine. Consider the Rule of Four, according to which the votes of any four of the nine Supreme Court Justices are sufficient to grant certiorari for a full hearing on the merits of a case. (10) A soft analogue of the Rule of Four would be an ordinary majority vote on the decision to grant certiorari, accompanied by an internalized legal norm that Justices would follow in casting their individual votes. (11) The content of the internalized norm might be something along the following lines: Justices should vote for certiorari if a reasonable Justice...

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