Restoring Chevron's domain.

AuthorAdler, Jonathan H.
PositionSymposium: A Future Without the Administrative State? Exploring the Administrative State

For some three decades, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1) has stood at the center of administrative law. (2) Although Chevron may have been somewhat "accidental," (3) Chevron has been among the most important and consequential administrative law decisions of all time. (4) It is, according to Cass Sunstein, a "foundational, even a quasiconstitutional text" in administrative law. (5)

Foundational or not, Chevron's domain (6) is under siege. (7) In recent years, commentators have raised doubts about the doctrine's continued vitality (8) and ultimate desirability. (9) Indeed, some have suggested Chevron should be ditched altogether (10)--if not by the courts, then perhaps by Congress. (11)

This brief Article's aim is not so ambitious as to praise or bury Chevron. It seeks only to make a more modest point about the Chevron doctrine and its domain. (12) On the assumption that Chevron, in some form, will remain a significant part of the constellation of administrative law, this Article suggests Chevron's domain should be defined and delimited by its doctrinal grounding. Put another way, the legal rationale for providing deference to agency interpretations of ambiguous statutory text should determine the doctrine's scope and application. (13) More precisely, insofar as the Court's subsequent application and elucidation of Chevron have indicated that Chevron deference is predicated on a theory of delegation, courts should only provide such deference when the relevant power has been delegated by Congress (even if such delegation is only implicit). Correspondingly, such deference should be withheld when such delegation is absent or cannot be presumed to have occurred. Chevron should only prevail when confined to its proper domain, and its domain is a product of delegation.

  1. THE ACCIDENTAL LANDMARK

    Chevron's two-part test is quite familiar:

    When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. (14) This test has become a fixture of administrative law. Whether or not the Court's description describes what lower courts actually do in practice, (15) lower courts rely upon Chevron quite often. (16) Each year federal appellate courts cite Chevron in over 200 cases. (17) But although Chevron is ubiquitous, its place in the pantheon of great administrative law cases requires some explanation. When it was first decided, few recognized its significance. (18) The Justices seemed unaware they were erecting a substantial edifice. (19) There is no indication that Chevron's author, Justice John Paul Stevens, sought to break new ground, let alone define the contours of judicial review of administrative agency statutory interpretations for years to come.

    Chevron's significance grew over time as judges on the U.S. Court of Appeals for the D.C. Circuit and the Executive Branch deployed Chevron's famous test to blunt judicial review and carve out greater freedom for administrative action. (20) The Reagan and Bush Administrations, in particular, saw Chevron as a way to facilitate greater executive control over regulatory policy. (21)

    Justice Stevens's ambitions while drafting Chevron may have been modest, but the effects of his decision have been quite expansive. Given the breadth of delegation in the modern administrative state, granting deference to agency interpretations of the statutes they implement augments the scope of agency power. Congress enacts lengthy statutes laden with gaps and ambiguities conferring broad regulatory authority to federal agencies, which, in turn, are granted the responsibility and authority to offer conclusive interpretations of what these statutes mean. (22) Although courts are not supposed to consider agency views in the threshold inquiry, (23) this is a limitation honored in the breach. (24)

    In offering their interpretations, agencies not only resolve ambiguities, they exercise policy judgment about how regulatory regimes should be implemented and enforced. This means, in practice, Chevron deference does not merely concern the semantic meaning of statutes. It extends to policy choice as well. (25) If agency interpretations of ambiguous or incomplete statutory texts are to be given conclusive effect, as Chevron seems to require, federal agencies have more room to direct federal regulatory policy.

  2. GROUNDING CHEVRON

    Whether due to its accidental provenance or not, Chevron was not particularly well grounded at its inception. The opinion itself was conceived as an application of well-settled practice (26) and offered multiple potential explanations for conferring deference to agency interpretations. Accordingly, there has been much debate about how to understand Chevron's rationale. (27)

    One justification for giving deference to agency interpretations of statutes they implement is comparative institutional competence. (28) Agencies, as institutions, may possess a comparative advantage at interpreting the meaning of statutory provisions they implement. Agency officials are likely to be far more familiar with the particulars of a given statutory regime, the subjects to which the statute applies, and how different interpretations or applications may advance (or frustrate) the legislature's purposes than are judges (or even legislators). Indeed, agency officials may be responsible for portions of the relevant statutory text. (29)

    Another justification is political accountability. (30) Agency officials are subject to presidential appointment and (at least outside of independent agencies) presidential removal as well. (31) The most significant and substantial agency actions, such as the promulgation of economically significant regulations, are subject to White House review through the Office of Information and Regulatory Affairs. (32) Insofar as adopting a particular statutory interpretation entails some degree of policy judgment, agency officials are likely to adopt those statutory interpretations that are consistent with the reigning administration's policy preferences.

    Agencies are not only more accountable than judges, they may also have a greater understanding of legislative intent and purposes. Agency officials may have played a role in the drafting process. At the same time, they are likely to be cognizant of legislative preferences when implementing and interpreting statutory provisions. When agencies go astray, members of Congress may intervene. Legislative oversight and control over the appropriations process discipline agency action, at least on the margin.

    The combination of executive and legislative pressures ensures that agency interpretations will be responsive to political concerns. Judges, on the other hand, are more insulated from such political pressures. This, combined with the relative lack of expertise among the judiciary, means that judicial interpretations of ambiguous statutory provisions, while perhaps more semantically satisfying, will be less responsive to political forces, and the judges themselves will be largely unaccountable for their decisions.

    Empowering agencies to offer authoritative interpretations of ambiguous federal laws also serves the goal of uniformity within the federal system. (33) If federal law is federal law, it should apply uniformly throughout the nation. Leaving the interpretation of ambiguous or unclear statutes to the courts can result in different interpretations applying in different places (at least until the Supreme Court resolves such questions, should it choose to do so). A federal agency interpretation to which courts are obliged to defer, on the other hand, provides for a single nationwide interpretation of the relevant statute.

    Expertise, accountability, and uniformity are all policy reasons for deferring to agencies over judges in the interpretation of ambiguous statutory phrases. They are reasons why Congress might prefer to confer interpretive authority to agencies over courts. Legislators may also conclude that agencies are more faithful (or more controllable) agents than courts. But whatever the merits of such arguments, they do not provide a legal basis for Chevron.

    The above are reasons why Congress might choose to enact a deference regime, but they are not evidence that Congress has actually done so. Indeed, there is little evidence that Congress has adopted such a generalized presumption that agencies are due deference in their interpretations. (34) To the contrary, the plain text of the Administrative Procedure Act ("APA") would seem to suggest just the opposite. Section 706 of the APA provides that courts are to "decide all relevant questions of law," including the meaning of "statutory provisions." (35) This would seem to preclude a blanket doctrine of ceding interpretive primacy to administrative agencies. After all, the semantic meaning of a given statutory provision is precisely the sort of legal question the APA assigns to the courts.

    Although others have suggested that Chevron has a constitutional (36) or common law (37) foundation, the Court has made clear that Chevron is, in fact, premised on a delegation of interpretive and policymaking authority from Congress to implementing agencies. (38) There is no statutory...

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