Chevron's foundation.

• Author: Seidenfeld, Mark

This Article addresses the question of how a court can justify deferring to an administrative agency interpretation of a statute under the Chevron doctrine given the accepted understanding that Article III of the Constitution makes the judiciary the ultimate decider of the meaning of law in any case or controversy that is properly before a court. It further considers the ramifications of the answer to that question on the potential forms that any doctrine of interpretive deference may assume.

This Article first rejects congressional intent to delegate interpretive primacy to agencies as the basis for Chevron. It argues that such intent is an unsupportable fiction that distracts attention from judicial responsibility for the Chevron doctrine. Instead, it posits that Chevron is better viewed as a doctrine of judicial self-restraint under the courts' Article III responsibilities. It then analyzes how this view of Chevron might influence when and how the doctrine should operate.

INTRODUCTION

How can a court justify deferring to an administrative agency interpretation of a statute under the Chevron (1) doctrine given the accepted understanding that Article III of the Constitution makes the judiciary the ultimate decider of the meaning of law in any case or controversy that is properly before a court? That is the question this Article addresses. (2) It further considers the implications of the answer on the potential forms that any doctrine of interpretive deference may assume.

Several commentators have addressed what political theory best justifies the administrative state. (3) This normative question has ramifications for the Chevron doctrine. In particular it provides insights about the circumstances in which it is preferable for the court to defer to an agency interpretation. It also provides guidance about how to structure any deference doctrine to maximize its benefits. (4) For example, a theory based on pluralism would justify a court demanding agency procedures to ensure that all affected groups are represented in the process, but then deferring to an agency interpretation as long as the agency remained within the bounds of its statutorily authorized power. (5) Alternatively, a theory based on deliberative democracy might justify a court deferring on a legal question when the agency has sufficiently deliberated about its reading of the law. (6)

It is imperative, however, to distinguish the normative question about what political theory best justifies the administrative state from the positive question of how, under any such theory, a court can justify "ducking" what would seem to be its responsibility to provide a definitive interpretation of a statute. The positive question, being one of how the courts can forfeit what seems to be a constitutional responsibility, is prior to the normative one. The normative question arises only after the positive question has been answered, and that answer will constrain the permissible responses to the normative question. Those who elide the constitutional question thus subject themselves to criticism that, whatever the attractiveness of their normative prescription for Chevron, their prescription may be constitutionally untenable. At least one scholar has proposed a pragmatic understanding of Chevron that conflates the two questions, thereby advocating that Chevron apply only when a hodgepodge of factors reflecting disparate theoretical levels of inquiry are satisfied. (7) By treating constitutional justifications and policy considerations on an equal footing, this understanding forfeits any potential to explain how the factors that bear on this question should fit together in resolving it.

Perhaps such confusion by scholars is excusable given that the Supreme Court's expositions on the bounds of the Chevron doctrine do not distinguish the positive question of the constitutional basis for Chevron from the normative question of what the Chevron doctrine should look like. I contend that the failure to maintain such a distinction has led to much of the uncertainty about the applicability of Chevron under Supreme Court precedent.

This Article argues that the foundation for the Chevron doctrine is anchored in the separation of powers as manifested by the structure of the Constitution and Article III's assignment of the judicial powers. In so anchoring Chevron, this Article rejects the common assumption that the foundation is in an implicit statutory prescription and the intent-based inquiry to which this assumption leads. Instead, it contends that the foundation is best viewed as a soft constitutional norm that, to the extent possible under our constitutional structure, encourages courts to refrain from dictating outcomes in policy-laden decisions. The norm is "soft" in that it does not mandate an absolute constitutional ban on courts relying on policy to resolve issues of statutory interpretation. Rather it is a self-imposed constraint meant to create barriers against a court reading a statute to effectuate what its judges believe (either explicitly or implicitly) to be the best policy available when an appropriate alternative institution also bears responsibility for interpreting the statute. Thus, this Article sees Chevron as a doctrine similar to the resistance norms that scholars have identified in other areas as a means of making it more difficult for Congress to act in a manner that compromises constitutional values even though the courts and these scholars all agree that Congress can compromise such values so long as it does so in clear and unmistakable language. (8)

This Article begins by addressing claims that congressional intent to have courts defer to agency interpretations of statutes is the most satisfactory constitutional mooring for the Chevron doctrine. (9) Concluding that the evidence of such intent is scant, the Article proposes its alternative--that the doctrine is a judicially self-imposed constraint to assuage concerns about the court's countermajoritarian role under the Constitution. Finally, the Article discusses the implications that follow from this alternative foundation.

1. CRACKS IN THE INTENT-BASED FOUNDATION OF CHEVRON

   Assuming that Congress has the power to mandate that courts defer to agency statutory interpretation, (10) a question remains whether Congress has mandated such deference, and if so, under what circumstances. (11) Currently, the legal foundation for Chevron, to the extent that the Supreme Court and scholars have addressed it, rests on an intentionalist theory of statutory interpretation. (12) The Court and these scholars purport to find, in the assignment of certain administrative tasks to agencies, a congressional intent that in some circumstances agencies are to exercise interpretive primacy over statutes that they administer. (13)

   There are at least three variations of the intent-based justification for Chevron. The Supreme Court set out its current understanding most explicitly in its United States v. Mead Corp. (14) opinion, which relies on congressional intent to authorize an agency to act with the force of law, but sees a broad array of factors as manifesting this intent. (15) Among scholars, Tom Merrill has most directly addressed the question of Chevron's foundation, and has also proposed that Chevron applies in reviewing agency action that Congress intended to have the force of law. (16) Unlike the Supreme Court, however, he finds a narrower set of circumstances in which a statute evidences such intent. John Duffy also invokes the force of law touchstone for Chevron, but has proposed the narrowest intent-based foundation; he would apply Chevron only to interpretations included in agency legislative rulemaking. (17) All three intent-based expositions, however, suffer from a paucity of evidence of relevant congressional intent, and all three fail to shore up their proposed foundations adequately in light of the implausibility of actual congressional intent.

   1. Implausibility of Congressional Intent

      By most accounts, Congress does not directly address the question of which institution--agency or court--is authorized to fill gaps or resolve ambiguities in the vast majority of regulatory statutes. (18) In that sense, congressional intent about interpretive primacy is a fiction. (19) One might contend that by failing to attend to this issue Congress implicitly means to give agencies primary responsibility for clarification of statutory meaning when the statute assigns agencies the responsibility to make decisions that require resolving statutory gaps and ambiguities. But, prior to Chevron, Congress legislated against a background understanding that the courts have ultimate judicial responsibility to say what the law is. (20) Thus, this contention is difficult to maintain for pre-Chevron statutes. (21)

      For post-Chevron statutes, the contention is still difficult to support because Congress specifically provided in the Administrative Procedure Act (APA): "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, [and] interpret.., statutory provisions...." (22) Hence, even statutes enacted post-Chevron would seem to be bound by Congress vesting ultimate interpretive authority in the reviewing court, unless the statute explicitly specified that the agency was to have such authority. Virtually no statutes do so.

   2. Inadequacy of Attempts to Shore Up Ephemeral Congressional Intent

      The Supreme Court has provided the most amorphous notion of intent--a notion that would justify invoking Chevron in a larger class of cases than would competing conceptions. Its most explicit exposition occurs in United States v. Mead Corp., (23) a confusing, (24) and I think confused, opinion. Mead speaks of actual congressional intent to authorize an agency to act with the force of law as a proxy for intent to designate the agency as the primary interpreter of ambiguous...