SYMMETRY'S MANDATE: CONSTRAINING THE POLITICIZATION OF AMERICAN ADMINISTRATIVE LAW.

• Author: Walters, Daniel E.

TABLE OF CONTENTS INTRODUCTION I. STATUTORY MEANING AND THE SYMMETRY OF ERRORS A. The Overlapping Consensus on the Function of Statutes B. The Symmetry of Errors C. The Pervasiveness of Type II Error in the Interpretation of Statutes D. Symmetry in the Doctrine II. THE ASYMMETRICAL ASSAULT ON DEFERENCE A. The Failure to Target Type II Error 1. Norton as Super Deference for Negative Delegations 2. Heckler as Talisman for Abdication 3. Judicial Refusals to Review Agency Denials of Rulemaking Petitions 4. Uneven Scorn for Chevron 5. The Roving Ghost of Overton Park 6. Summary B. Potential Policy Justifications for Asymmetry in Interpretation 1. The Executive Power to Decline to Implement the Law 2. Libertarian Commitments to Asymmetry: Administrative Lochner-ism 3. Remedial Deterrence Affecting the Substance of the Law 4. Unreviewability under the APA III. BACK TO SYMMETRY A. The Social Functions of Symmetry in Administrative Law B. Inexorable Deference CONCLUSION INTRODUCTION

When Congress passes a statute that presupposes some further elaboration and implementation by administrative agencies, eventually questions are bound to arise both about whether the responsible administrative agencies have overstepped their authority under the statute and about whether they have lived up to the expectations of the enacting Congress. (1) Under every mainstream theory of legislation, Congress, by the very act of legislating, expresses some preference about how the world should and should not change. (2) By giving some responsibility to agencies to see to it that these preferences are realized, though, Congress necessarily introduces some risk of slippage between Congress's meaning and the end product. (3) However, under (currently) prevailing theories of administrative law, this problem is assumed away. The act of leaving meaning underspecified is construed as an implied delegation that justifies deference on the part of Article Ill courts who otherwise would stand at the ready to enforce what they find to be the statute's meaning. (4)

Agencies, not surprisingly, make use of the discretion afforded by deference. They can take aggressive positions on the reach of unclear or outdated statutory language, potentially expanding the law's practical reach to the limits of the congressional delegation--although, if they go too far and regulate beyond their powers, they may commit a kind of analog to a false positive, or Type I error, in empirical research. (5) For instance, critics point out that agencies sometimes stretch aging statutory language to address new problems, such as the threat of climate change, that were probably not anticipated by the enacting Congress, (6) and of course arguments that agencies exceeded their statutory authority are the daily bread of administrative law. (7) At the same time, though, deference also gives agencies considerable discretion to limit the impact or scope of regulation compared to what the statute might be interpreted by a court to require. Here, as well, there is a risk of error should the agency go too far. As much as commentators fixate on alleged cases of agency overreach, agencies can also err through interpretive underreach, whether by indefinitely declining to take action prescribed, by disclaiming their authority altogether, or by simply refusing to undertake action in cases where the statutory language is clearly applicable. (8) We might call this kind of error, analogous to a false negative, Type II error. (9) For instance, a statute might direct an agency to regulate a particular actor or activity to a particular standard, but the implementing agency's interpretation might narrow the scope or impact of the regulation in practice, as was the case with the Department of Health and Human Services' (HHS) implementation of the Affordable Care Act's keystone "essential health benefits" mandate. (10)

For decades, administrative law has been predicated on the theory that judicially remediable errors exist only on the periphery of wide delegations of statutory authority from Congress. (11) The price of Congress's imprecision is the inevitable introduction of what judges, exercising something like de novo review, might consider to be both Type I and Type II errors in the execution and implementation of law. But under the deferential paradigm of administrative law, courts respect Congress's own risk tolerances and willingness to leave matters for explication by implementing agents.

What happens, though, when courts begin to see the minimization of interpretive errors as quintessentially a judicial task, or when they begin to see the entire concept of delegation as suspect, and under either theory begin to reconsider the propriety of deference to agency interpretations of law? As many will note, that is increasingly the world that we live in. (12) One might expect that both Type I and Type II errors would be of equal concern for any such reform program that seeks more precisely to capture the enacted meaning of law--that is, that courts would be at least as concerned about the pernicious effects of lax administrative law doctrines on agency overreach as they are about the pernicious effects of lax administrative law doctrines on agency underreach. If, as Justice Thomas put it in Michigan v. EPA, deference "wrests from [the] Courts the ultimate interpretative authority to 'say what the law is,' and hands it over to the Executive" in violation of the Constitution, (13) then that concern would seem to apply with equal force when executive agencies exploit statutory imprecision to avoid taking actions consistent with the judiciary's best understanding of the statute's directive. Operating on these formalist foundations, (14) the meaning of a statute just is what it is (even if that meaning can sometimes be hard to discover); it is not conventionally understood to be only a ceiling, under which any and all exercise of discretion is permitted, and it certainly cannot be viewed that way consistent with the more generalized suspicion of delegation of legislative authority that animates much of the trend away from deference. (15)

In fact, though, the growing formalist skepticism of judicial deference to agency interpretations of law has been characterized by concern only about what I am terming Type I errors. Both in rhetoric and in practice, the movement against deference and delegation demonstrates no serious concern with Type II error. A cacophony of calls for eradicating Chevron deference (16) in cases where agencies offer expansive interpretations of an ambiguous statute to undertake aggressive regulation of private conduct contrasts with near radio silence where we might expect to hear calls for reconsideration of precedents like Norton v. Southern Utah Wilderness Alliance (17) and Heckler v. Chaney, (18) both of which practically vest executive agencies with unreviewable discretion to eviscerate statutory meaning through concerted inaction with no justification at all. Moreover, Chevron itself has not been attacked with such zeal when agencies use it to undershoot statutory meaning. (19) In effect, this asymmetry imports a libertarian default rule into administrative law, preventing judges from holding agencies to Congress's expectation of policy implementation while simultaneously empowering courts to stop agencies whenever the latter's activities move beyond what Congress has mandated. (20)

My purpose in this Article is to identify and question this asymmetrical treatment of interpretive error in contemporary trends in administrative law theory and practice. I want to suggest that there is in fact a strong legal case to be made for symmetrical treatment of agencies' statutory errors in administrative law: systemic asymmetry runs against consensus notions of what it is that statutes do; it cannot be justified by resorting to other principles or legal authorities that would supersede Congress's clear command in the Administrative Procedure Act (APA) that agency failures to act are identical to agency actions; and in the long run it will threaten the legitimacy of administrative law by tilting the scale toward a substantive vision of public law that stifles government's ability to respond to social demands for policy. This last consideration deserves special attention in a hyperpartisan regulatory environment. The two types of interpretive errors that agencies can commit have distinct distributive consequences. (21) Insisting on symmetry, however, minimizes the skew of the distributive consequences of administrative law rules, and this in turn keeps us honest as we consider alternative visions of administrative law. In this sense, symmetry norms in administrative law play an important depoliticizing role in an area of law that is otherwise at risk, due to the partisan polarization of our times, of being co-opted by politics. (22) Symmetry in administrative law, as I understand it, is formally neutral as to the substantive standards and overall valence of judicial review (i.e., it would theoretically be consistent with either an across-the-board deferential approach or with the systematic eradication of deference, or with something in between, which may well be what we have had for decades now). What it does not allow, however, is judges' use of recalibrated deference doctrines to put a thumb on the scale in favor of the kinds of errors that they most prefer as a policy matter. If courts do decide to curtail deference when agencies overreach, they should feel obliged to do the same in cases where litigants argue that the agency should have gone further.

Despite its agnosticism toward the overall valence of judicial review of agency interpretations of statutes, I do also end the Article by arguing that carrying symmetry's mandate to its logical endpoint in fact helps to illustrate and explain why administrative law does and should bend toward deference in the long run. (23)...