Judicial review of administrative policymaking. .

• Author: Koch, Charles H., Jr.

Following the Supreme Court's decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., (1) scholars have delved into every nook and cranny of judicial review of agency statutory interpretation. (2) Yet inquiry into the more subtle and practically potent questions involving the broad category of review of administrative policymaking has languished. Perhaps administrative law scholars have mined the Chevron doctrine sufficiently and the time has come to rediscover the rich question of judicial review of this other source of policy. James Landis, the oracle of administrative law, observed in a landmark essay that "[t]he ultimate test of the administrative [institution] is the policy that it formulates; not the fairness as between the parties of the disposition of a controversy on a record of their own making." (3) The founding generation of administrative law recognized that the administrative process grew out of the desire to develop a mechanism for effective policymaking. (4)

This Essay asserts a categoric difference between judicial review of statutory interpretation and review of administrative policymaking. Ordinarily, the judiciary confronts statutory language de novo. In the administrative process, however, a reviewing court has before it a prior authoritative treatment of the statutory language. The existence of another "faithful agent" between the legislature and the courts instrumentally changes the role of the courts. (5) The Chevron doctrine recognizes one aspect of this instrumental difference. It demands that the courts accept that an authorized agent of the legislature has pronounced on the topic and it compels courts to give that meaning more weight than they would interpretations offered by ordinary litigants. It says that when a court is confronting an administrative interpretation of a statute, they must accept that interpretation if the meaning gleaned from the statute is not contrary to the clear meaning of the language and is reasonable. As to interpreting statutory language, the courts must give due deference to the prior agent, the agency created to execute the legislative program, and that deference is defined by the Chevron doctrine. In a sense, the judicial role here is not distinguishable in kind from the role played by courts in any statutory interpretation; the additional element is the injection of an authoritative agent.

The doctrine does not cover another category of administrative decisions, however. Specifically, the Chevron doctrine does not address those agency decisions executing statutory language through the authorized creation of policy itself. These administrative decisions do not interpret language but actually carry forward the mandate of the statute; in doing so they extend the policy-reeking process begun by the legislation rather than figuring out what policy the language conveys. In this context, the judicial role cannot be defined as some special variety of the statutory interpretation. Rather, it must be conceived as a distinct category of judicial review. Although some of the impressive thinking that has constructed the Chevron doctrine, as well as the Chevron opinion itself, may be useful, review law about this category of administrative decisions, policymaking, must be developed independently. This Essay reaches into the existing law of review of administrative policymaking, informed by the work done in developing the Chevron doctrine, to urge a renewed attention to this category of judicial review.

Although agencies are generally designed with dominant authority over their special policy-making area, courts retain some function over administrative policymaking. (6) The complex questions concerning the proper allocation of authority between the courts and the agencies--and, indirectly, the legislatures--in policymaking needs attention. Administrative law has well-established principles to guide courts in carrying out this responsibility. (7) Nonetheless, the opportunity remains for administrative law specialists to profitably modernize these principles, perhaps utilizing the massive body of work concerning review of statutory interpretation under the Chevron doctrine. Two very recent cases, Christensen v. Harris County (8) and United States v. Mead Corp., (9) demonstrate the utility of such a transfer from review of statutory interpretation to review of policymaking.

The Chevron doctrine provides important insights into the allocation of authority to glean policy from legislation, the assignment of authority over statutory interpretation. Review of administrative policymaking, however, has not received commensurate attention, especially given its importance as a source of government policy. Just as Justice Stevens' opinion in Chevron influenced the development of the Chevron doctrine, it may also serve as a springboard for this inquiry. In his concluding summation Justice Stevens observed:

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges--who have no constituency--have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibility in the political branches." (10) What then is the proper judicial role with respect to the "wisdom of the agency's policy" rather than its interpretation of statutory language? As Justice Stevens and others have observed, this question implicates not only the allocation of policy-making authority between the courts and the agencies, but also indirectly between the courts and the political branches. (11) Following Justice Stevens' lead, administrative law needs to turn its attention to this issue.

1. A CATEGORIC DISTINCTION BETWEEN STATUTORY INTERPRETATION AND ADMINISTRATIVE POLICY

   Because the administrative process provides an intermediate decision-making body between the creation of legislation and judicial review, it requires a review system that can deal with two separate categories of policy judgments: legislative and administrative policymaking. These categories share a primary characteristic. According to Professor Ronald Dworkin, the term "policy" encompasses a wide variety of decisions that advance or protect some collective goal of the entire community as opposed to those decisions that respect or secure some individual or group right. (12) For purposes of this Essay, policymaking is defined as those government decisions that promote and protect societal values. The legislative process, which involves participation by the legislative and executive branches, is the foundational source of policy. Courts in a common law system also participate in the policy-making process although, as Landis observed, the very creation of the administrative process was motivated by the desire to tailor policymaking institutions to a particular need. (13) For this reason, the system has been forced to accept robust delegations and to find implicit as well as explicit policy-making delegations. (14)

   Our working definition might also help explain the common characteristic: both legislative policymaking and administrative policymaking share the objective of advancing or protecting societal or communal values and goals. (15) To some extent, the Chevron doctrine is founded on the notion that interpretation and policymaking are the same. (16) Although at an abstract level this observation cannot be challenged, it has proven misleading as a guiding principle for developing a judicial review strategy. (17)

   Operationally, statutory interpretation and administrative policymaking must be distinguished. An optimum system for developing decisions which further community values and goals requires two quite distinct types of judicial involvement. Such an assignment of judicial function implicates both the proper allocation of authority, as Justice Stevens observed, and captures the full benefit of both judicial and administrative comparative advantages.

   Precision in conceptualizing the respective policy-making functions of the judiciary and the various administrative agencies is therefore vital to the search for the best use of both in the context of the administrative process.

   The administrative process reaches policy conclusions in two basic ways: an agency either applies policy decisions created by another governmental institution or it creates the policy itself. When an agency applies policy created by another branch of government, the source is usually legislative, although it is sometimes judicial, and much of the law about this category of policy decision revolves around statutory interpretation. Interpretation of a statute involves gleaning policy from the legislation, a source independent from both the agency and the reviewing court. Depending upon the circumstances, courts may have as much, or more, interpretative authority than an agency. They should and traditionally have been given dominant authority because they are monitoring the agency to assure that the policy is true to the legislation. (18) Furthermore, courts have some advantages in performing interpretative functions the system needs to capture. (19)

   Traditionally, therefore, the courts have enjoyed a form of "de novo" or "plenary" authority over statutory interpretation, but have also recognized reasons to give agency interpretations "deference." (20) Courts today continue to express their basic role in terms of this form of de novo or plenary review. (21) These expressions are commonplace because courts are compelled to conduct plenary review by the clear language of the Administrative Procedure Act (APA). (22)...