The origins of judicial deference to executive interpretation.

• Author: Bamzai, Aditya

ARTICLE CONTENTS INTRODUCTION I. JUDICIAL DEFERENCE AT THE COURT AND THROUGH THE LENS OF HISTORY A. The Role of Precedent in the Chevron Opinion B. The Current Debate over Judicial Deference C. The Scholarly Treatment of the Precedents Cited in Chevron II. THE THEORY AND PRACTICE OF INTERPRETATION FROM THE EARLY AMERICAN REPUBLIC TO THE END OF THE NINETEENTH CENTURY A. The Theory of Interpretation: The Contemporanea Expositio and Interpres Consnetudo Canons of Construction 1. The Problem of Ambiguity 2. Solutions to the Problem of Ambiguity 3. American Perspectives B. The Interpretive Theory in Practice 1. The Generality of the Canons in American Practice 2. The Use of the Canons To Invalidate Executive Action C. Two Related Issues: The Mandamus Standard and Questions of Fact 1. Mandamus Review 2. The Distinction Between Law and Fact D. The View from 1900 III. THE STEPS TO CHEVRON A. The Traditional Canons of Construction from 1900 Through the New Deal Court 1. A Crack in the Glass 2. Persistence of the Traditional Approach 3. Intellectual Challenges to the Traditional Interpretive Method B. The Death (and Temporary Revival) of the Traditional Canons from 1940 to the Administrative Procedure Act 1. The New Jurisprudence 2. The Road to the Administrative Procedure Act 3. Section 706 of the Administrative Procedure Act 4. The APA's Aftermath C. The Irrelevancy of Text, the Forgetting of the Traditional Canons, and the Confusion Before 1984 D. Chevron Revisited: From Confusion to Clarity and the Repudiation of the Traditional Canons CONCLUSION INTRODUCTION

The doctrine of judicial deference to executive interpretation casts a long shadow over the entire field of American public law. That doctrine--now commonly associated with the Supreme Court's opinion in Chevron v. Natural Resources Defense Council--provides that a reviewing court must "defer" to an administrative agency's reasonable interpretation of the organic statute that it administers. (1) It does not stretch the imagination to believe that, on every single working day of the year, there exists in the employ of the federal government a judge, an executive officer, or a legislator who expressly invokes or formulates policy premised on Chevron.

From where did the concept of judicial deference to executive interpretation originate? At first blush, the concept may appear inconsistent with Chief Justice Marshall's assertion, in Marbury v. Madison, that "[i]t is emphatically the province and duty of the judicial department to say what the law is" (2)--a tension that has prompted some to characterize Chevron as the "counter-Marbury" of the administrative state. (3) But Chevron itself claimed provenance in a series of precedents stretching back to the Marshall Court that demonstrated that the Court had "long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." (4) The perspective that Chevrons origins date to the nineteenth century seems also to be a majority view among commentators, at least judging from the regular (though offhand) statements, even by critics of Chevron, conceding that there is a "long tradition of deference to agency interpretations." (5)

A separate doctrinal justification for judicial deference is set forth in Justice Scalia's dissent in United States v. Mead Corp., (6) and, almost a half century earlier, in Justice Douglas's majority opinion in Panama Canal Co. v. Grace Line, Inc. (7) Judicial deference, on this view, can be understood as "in accord with the origins of federal-court judicial review." (8) That is because, to borrow Justice Scalia's words, "[j]udicial control of federal executive officers was principally exercised through the prerogative writ of mandamus" before the enactment of general federal-question jurisdiction in 1875, and mandamus "generally would not issue unless the executive officer was acting plainly beyond the scope of his authority." (9) Based on this history, statutory ambiguities should be "left to reasonable resolution by the Executive," as they ordinarily would have been when an Article III tribunal reviewed a writ of mandamus directed against an executive official. (10) As Justice Douglas put the point, the "principle at stake" in judicial deference cases "is no different than if mandamus were sought--a remedy long restricted, in the main, to situations where ministerial duties of a nondiscretionary nature are involved." (11)

In contrast to these two justifications seeking to situate judicial deference in nineteenth-century historical practice, a diametrically opposed perspective is offered by those who, like Cass Sunstein, believe that Chevron is best "understood as a natural outgrowth of the twentieth-century shift from judicial to agency lawmaking." (12) On this view, as Mark Tushnet explains, early twentieth-century "administrative law unquestioningly accepted" that "courts would have full power to review agencies' decisions interpreting the law those agencies were administering." (13) That perspective accords with the view, expressed by Ann Woolhandler, that "[t]he de novo model in its various manifestations, which left the final say to the judiciary rather than the executive, was the predominant form of judicial review of executive action in the early Republic." (14) Chevron (or at least, its twentieth-century precursors), on this perspective, is not an outgrowth of, but rather a break from, what came before it.

There is an element of truth to each of these competing perspectives about the development of the doctrine of judicial deference to executive interpretation. But there is an element of imprecision in each as well. If judicial deference to executive interpretation is rooted in eighteenth- and nineteenth-century approaches to interpretive theory, what explains the perspective that de novo, rather than deferential, review was the traditional model of interpretation? By contrast, if judicial deference is a phenomenon of the mid-twentieth century, what explains the holdings of the nineteenth-century cases on which Chevron relied? And where does judicial review's origins in the writ of mandamus fit within the historical picture? The fact that a wide spectrum of historical interpretation is possible--even at this late date, more than thirty years after the Court's decision in Chevron--suggests that the roots of the doctrine announced in that opinion remain poorly understood.

Layered on top of these varying interpretations of the case law are varying interpretations of the text of the Administrative Procedure Act (APA), which represented (in part) Congress's attempt in 1946 to codify and clarify the scope of judicial review of agency legal interpretations. The relevant text of the APA seems simple enough: it provides that a "reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." (15) Yet, here too, disagreement over meaning reigns. Some argue that the text of the APA is too simple--deceptively simple. It was intended, in the words of the influential Attorney General's Manual on the Administrative Procedure Act, to "re stat[e] the [then-]present law as to the scope of judicial review" (16) and as a "general restatement of the principles of judicial review embodied in many statutes and judicial decisions." (17) The APA, on this view, incorporated the approach of pre-1946 cases expressing principles of judicial deference and, thereby, incorporated a doctrine akin to Chevron.

Courts and commentators tend to agree on at least one issue: prior to Chevron, there was widespread confusion over the proper scope of review. (18) That confusion could be seen in the various approaches that courts took in the years immediately preceding Chevron, and it dated back to the very earliest days of the nation. (19) The confusion is well expressed in a 1976 opinion by Judge Friendly that announced it was "time to recognize ... two lines of Supreme Court decisions on th[e] subject" of judicial deference "which are analytically in conflict, with the result that a court of appeals must choose the one it deems more appropriate for the case at hand." (20) In his opinion, Judge Friendly contrasted a series of Supreme Court cases "supporting the view that great deference must be given to the decisions of an administrative agency applying a statute to the facts and that such decisions can be reversed only if without rational basis" with a separate and "impressive body of law sanctioning free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term." (21) Indeed, on one view, Chevron--if it had no other beneficial aspects--at the very least cleared up the intellectual and jurisprudential disarray that had existed for over a century prior to 1984. (22)

Or did it? In this Article, I argue that commentators have misunderstood the pre-Chevron state of affairs. Although Chevron can claim an analog of sorts in early nineteenth-century cases about interpretive methodology, those cases addressed the "respect" that was due to executive interpretation because of the interpretation's nature--specifically, its articulation contemporaneous with the enactment of the controlling legal text or its ability to demonstrate a customary practice under that text. In this respect, four critical and hitherto neglected points are necessary to understand the intellectual and jurisprudential development of judicial deference to executive interpretation.

First, the charge of longstanding and uniform analytical disarray is mistaken. Far from being under-theorized, proper interpretive methodology in the seventeenth and eighteenth centuries received ample intellectual and judicial attention. Eighteenth-century England and America were no intellectual wastelands when...