Democratizing the administrative state.

• Author: Pierce, Richard J., Jr.

ABSTRACT

Scholars have long questioned the political and constitutional legitimacy of the administrative state. By 1980, a majority of Supreme Court Justices seemed poised to hold that large portions of the administrative state are unconstitutional. In 1984, the Court retreated from that abyss and took a major step toward legitimating and democratizing the administrative state. It instructed lower courts to defer to any reasonable agency interpretation of an ambiguous agency-administered statute, basing this doctrine of deference on the superior political accountability of agencies. Henceforth, politically unaccountable judges were prohibited from substituting their policy preferences for those of politically-accountable agencies. The Court recognized that agencies are politically accountable to the people because they are subject to the control of the elected President.

The Court's 1984 effort to democratize the administrative state has fallen far short of its potential because of temporal problems with the manner in which the Supreme Court defines and implements both the deference doctrine it announced in 1984, and the other two doctrines that require courts to defer to agency interpretations of agency-administered texts. The most important of those deference doctrines is explicitly premised on the Court's understandable belief that policy decisions should be made by the politically accountable President rather than by politically unaccountable judges. Yet, the Court's present method of implementing the deference doctrines has two unfortunate effects. First, in a high proportion of cases, there is a lag of four to eight years between the time that a President takes office and the time when a court is willing to acquiesce in implementation of the policies preferred by the President. In other words, each President is required to implement the policies preferred by his predecessor for at least one term and perhaps even for two terms. Second, in some important situations, regulatees are required to incur large costs in enforcement actions to comply with interpretations of agency rules that have already been rejected by the incumbent President by the time courts impose the costs on the regulatees, and that were disavowed by the agency at the time the regulatees engaged in the conduct that is the basis for the enforcement actions.

This Article explains why these results are unacceptable, and proposes four changes in the Court's present methods of implementing the deference doctrines that will eliminate these effects and that will create a more democratic and constitutionally legitimate administrative state in which Presidents actually have the power to make changes in policy within the statutory boundaries set by Congress.

TABLE OF CONTENTS INTRODUCTION I. THE DEFERENCE DOCTRINES A. Chevron Deference B. Skidmore Deference C. Seminole Rock Deference D. Differences Between the Deference Doctrines II. THE SCOPE OF EPA PREEMPTION OF STATE PESTICIDE REGULATION A. The Policy Dispute B. Supreme Court Opinions Addressing the Pesticide Regulation Preemption Issue C. Doctrinal Critique of the Dow Opinion D. Normative Critique of the Dow Opinion E. Potential Changes in Doctrine III. THE MEANING OF "MODIFICATION" IN THE CLEAN AIR ACT A. The Policy Dispute B. Court Opinions Addressing the Dispute About the Meaning of Modification C. Doctrinal Critique of the Opinions Interpreting Modification D. Normative Critique of the Opinions on the Meaning of modification E. Potential Changes in Doctrine CONCLUSION INTRODUCTION

Scholars have long questioned the political and constitutional legitimacy of the administrative state. (1) By 1980, it appeared that a majority of Supreme Court Justices were prepared to outlaw large portions of the administrative state by holding that Congress cannot delegate major policy decisions to "politically unresponsive administrators." (2) In 1984, however, the Supreme Court unanimously stepped back from that abyss and instead took a major step toward legitimating and democratizing the administrative state. In its opinion in Chevron U.S.A. Inc. v. Natural Resources Defense Council, the Court recognized that Congress has the ultimate power to define the terms it uses in statutory texts, but it went on to require a court to defer to any reasonable agency interpretation of an ambiguous statute that Congress has instructed the agency to implement. (3) The Court made clear that Chevron deference is based on constitutional principles that are central to our democratic system of government--politically accountable agencies, rather than politically unaccountable judges, should make the policy decisions that are inherent in the process of giving meaning to ambiguous texts that Congress has assigned agencies to implement. (4)

The Court anchored Chevron deference in the relationship between agencies and the President. Thus, it explained:

[A]n agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, 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, and it is entirely appropriate for this political branch of the Government to make such policy choices--resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities. (5) The Court foreshadowed its 1984 recognition of the critical relationship between agency policy decisions and the elected President in a 1983 opinion:

The agency's changed view ... seems to be related to the election of a new President of a different political party .... A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations. As long as the agency remains within the bounds established by Congress, it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration. (6) The Court's methods of applying the Chevron doctrine and the other doctrines that require politically unaccountable judges to defer to politically accountable agencies, however, regularly yield results that are inconsistent with the Court's attempt to infuse the administrative state with principles of democracy. (7) As applied by the Supreme Court, the deference doctrines typically require a court to defer to the policy preferences of a President who left office years ago rather than to the policy preferences of the person who was elected to replace him. (8) As a result of the Court's decisions with respect to the scope of the deference doctrines a newly elected President has little chance of announcing any of his policies in a form that a Court is willing to accept as worthy of deference during a single term in office, and a President is unlikely to obtain judicial acquiescence in all of his preferred policies even if he is reelected for a second term. (9)

The cases discussed here to illustrate this phenomenon involve situations in which courts required President Bush to implement policies adopted by former President Clinton rather than the policies preferred by President Bush. Some readers who dislike the policy preferences of President Bush may consider this a socially beneficial effect of the scope of the doctrines criticized in this Article. That attitude, however, is short-sighted. If the Democrats retake the White House in 2008, those same doctrines will require potential President Hillary Clinton to implement many of the policies preferred by former President Bush for all or most of her term of office.

Chevron deference is implicitly based on the assumption that an incumbent President obtains control of the federal bureaucracy immediately upon taking the oath of office. (10) That, however, is well known to be a counterfactual assumption. It typically takes many months for a newly elected President to get 'his people" installed in all of the agency policymaking positions. (11) It then takes those neophyte political appointees many more months to figure out what the agency is doing and to begin to implement the policies the President prefers. (12)

When the incumbent's preferred policies differ from those of his predecessor, the process of changing policy is difficult and time-consuming. (13) The President's appointees must identify and implement means of reversing the powerful inertial forces that have developed in the permanent bureaucracy in support of the policies preferred by the President's predecessor in office. (14) Even when the newly elected President strongly disagrees with a policy adopted by his predecessor, it may well take him a year or more just to begin the process of switching to a policy that he, and presumptively a majority of the electorate, prefer. (15) When the President's appointees attempt to announce and to implement policies that are consistent with the President's preferences, they often confront procedural hurdles that typically take years to overcome before the President's policy preferences can be announced in a manner that courts are willing to accept. (16)

The goal in this Article is to explore some of the issues courts encounter when they are required to review agency policy decisions during a period of change from the policies preferred by a prior President to the policies preferred by the incumbent. This Article suggests ways of addressing those issues that are consistent with the constitutional bases for the deference doctrines as well as with other important principles of administrative law and constitutional law. It uses two contemporary disputes to illustrate the kinds of questions that arise when a court is required to resolve a policy dispute...