Hierarchically variable deference to agency interpretations.

• Author: Bruhl, Aaron-Andrew P.
• Position: Abstract through I. The Theoretical Case for Hierarchically Variable Deference, p. 727-757

ABSTRACT

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies' legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case--Chevron, Skidmore, or something else--all courts in the judicial hierarchy are supposed to apply that same standard.

This Article proposes instead that the law should take into account the varying institutional circumstances and competencies of courts at different positions in the judicial hierarchy. More specifically, lower courts should be more deferential to agencies than should higher courts. The argument divides into two parts. Part I, which presents the theoretical case, lays out a series of common rationales for judicial deference and explains how those rationales actually support a regime of hierarchically variable deference. Part II then turns to questions of institutional implementation. As it turns out, our system already manifests a few features of hierarchically variable deference, though it does not do so openly. Thus, this Article helps to explain and justify some current practices. Prescriptively, Part II suggests a number of ways in which the judicial system could more systematically implement a regime of hierarchically variable review. One possibility is that different courts should employ somewhat different doctrinal standards, but hierarchical variation can also manifest itself through non-doctrinal means, such as through decisions about how to allocate jurisdiction.

INTRODUCTION I. THE THEORETICAL CASE FOR HIERARCHICALLY VARIABLE DEFERENCE A. Brief Summary of Deference Doctrines B. Rationales for Deference--and Their Court-Specific Features 1. Legislative Intent to Delegate Authority 2. Expertise 3. Democratic Pedigree 4. Nationally Uniform Regulatory Policy 5. Flexibility and Statutory Updating 6. Application to Judicial Review of Other Agency Activities C. Some Initial Objections to Heterogeneity II. POSSIBILITIES FOR INSTITUTIONAL IMPLEMENTATION A. Ways in Which Our System Already Displays Hierarchically Variable Deference 1. Unofficial Doctrinal Divergences? 2. Current Patterns of Jurisdictional Allocation B. Potential Changes to Current Law 1. Non-Doctrinal Approaches a. Implementing Deference by Curtailing Jurisdiction b. Implementing Deference Through Voting Rules and Related Structures 2. Doctrinal Approaches a. Specific Doctrinal Modifications b. Doctrinal Heterogeneity and Complexity Tradeoffs c. Workability Revisited: Discretionary Jurisdiction and Optimal Differentiation 3. Implementing Hierarchically Variable Deference CONCLUSION: DIFFERENT COURTS, DIFFERENT ROLES INTRODUCTION

The law of judicial review of agency action is marked by complexity and variety. Depending on the situation, federal courts will apply one of several distinct standards of review. The multiplicity of standards reflects, in part, the fact that administrative agencies do several different things, such as make factual findings, exercise policymaking discretion, and interpret governing statutes and regulations. Yet the doctrinal complexity persists even when we narrow the field and consider only judicial review of agency interpretation. Prevailing doctrine requires, depending on the circumstances, that reviewing courts either defer strongly to the agency's interpretation ("Chevron deference"), defer a bit ("Skidmore deference"), employ some other deference regime, or defer not at all. (1) As the Supreme Court has admitted in describing its approach to fashioning these standards of review, the Court has often chosen "to tailor deference to variety" rather than "to limit and simplify." (2)

There is at least one respect, however, in which uniformity rather than variety prevails: the applicable standard of deference does not vary depending on which court is reviewing the agency. Rather, whatever the relevant standard happens to be, the same standard is supposed to be applied by all courts within the judicial hierarchy. (3) For instance, if a particular agency interpretation merits "Skidmore deference" from the Supreme Court, it merits the same type of deference from the federal courts of appeals and district courts. Put differently, the law of judicial deference is hierarchically uniform.

There is nothing inevitable about embracing this type of uniformity. Scholars of statutory interpretation have begun to suggest that interpretation need not be a homogeneous activity that all courts perform the same way. (4) If one were to step back from current law's apparent insistence on homogeneity, doctrines of deference would seem like natural candidates for variation across courts. That is because doctrines of deference are based largely on institutional considerations, in particular the divergent roles and competencies of courts on the one hand and administrative agencies on the other. (5) But "courts" are a diverse bunch, and within that category one finds important variations in institutional competencies, functions, and contexts. Because of these cross-court differences, the various rationales supporting deference apply with varying degrees of force depending on which court is at issue. More specifically, the rationales for deference are more persuasive as one moves lower down the judicial hierarchy. Cross-court differences thus provide a reason--to be weighed against countervailing considerations, of course--to tailor deference doctrines so that they track the institutional circumstances of various reviewing courts.

In highlighting the potential for variation within the judicial hierarchy, this Article contributes to the broader theoretical debate over the optimal tailoring of deference doctrine: which of the many dissimilarities across contexts--across different courts, different kinds of agencies, (6) and individual cases--should the judicial system take into account and which should be disregarded in the name of simplicity and uniformity? This Article contends that differences across courts are important enough that a well-designed system of judicial review should, in some form, take them into account.

Supposing that hierarchical variation were justified, what would the resulting system look like? To preview, there are several possibilities. One possibility is that the lower courts should defer more than they do under current practice, but another possibility is that the Supreme Court should defer less. Further, despite the judicial system's official embrace of uniformity, it could be that the system already displays hierarchical variation in practice, with lower courts deferring more than the Supreme Court. If so, all courts could be behaving roughly correctly already, and no adjustment to the status quo would be needed.

The Article's examination of hierarchically heterogeneous deference divides into two parts. Part I presents the theoretical case for hierarchical variation. It lays out the typical rationales for judicial deference and explains how each rationale, upon reflection, has a hierarchically variable character. Part II then turns to the matter of institutional implementation. That is, if the justification for deference is stronger in lower courts than in higher courts, how (if at all) might the judicial system actually implement a scheme of variable deference? As it turns out, our system already does manifest a few features of hierarchically variable deference, though it does not do so openly. Thus, this Article helps to explain and justify some current practices, perhaps even reconciling us to some features of current law that otherwise seem problematic. Further, in a more prescriptive mode, Part II suggests a number of ways in which the judicial system could more systematically implement a regime of hierarchically variable review. Impediments and countervailing values are acknowledged and considered. It is a mistake to assume that variable deference can be implemented only through doctrine--that is, requiring different courts to use different legal standards. Although doctrine is one means of implementation, deference can manifest itself in other ways too, such as through decisions about how to allocate jurisdiction. In fact, non doctrinal implementations of deference have some advantages in terms of workability and, perhaps, efficacy.

Before proceeding, two notes regarding scope are in order. First, the subject is federal court review of federal agencies. Issues regarding state standards of review and interactions between the state and federal regulatory systems are interesting, especially considering that many state judges are elected, but those issues are not taken up here. (7) Second, courts review a variety of agency activities, and the activity primarily at issue here is agency legal interpretation: e.g., What is a "stationary source" within the context of the Clean Air Act?; Does the Endangered Species Act prohibit private landowners from chopping down trees if doing so destroys the habitat of endangered animals?; Does a worker's oral objection to workplace overtime violations count as a "complaint" for purposes of the Fair Labor Standards Act?; and so on. (8) Courts and scholars have devoted a tremendous amount of intellectual energy to thinking about judicial review of agency interpretation, (9) and so it makes sense to engage with that body of doctrine and scholarship. Nonetheless, various types of agency action blend into each other, such that it is often hard to maintain a strict separation between legal interpretation on the one hand and policy discretion or even fact-finding on the other. Therefore, review of...