Author:Wurman, Ilan

When agencies implement their statutes, administrative law doctrine describes what they do as interpretation. This raises the question of how much deference courts ought to give to such agency interpretations of law. This Article claims, however, that something else is usually going on when agencies implement statutory schemes. Although agencies interpret law, as they must, as an incident to enforce the law, agencies also exercise another power altogether: an interstitial lawmaking, gap-filling, policymaking power, a power that I shall call the "specification power." This Article aims to advance existing accounts of agency activity and judicial deference by demonstrating that agencies exercise distinct powers of law-interpretation and law-specification when implementing a statutory scheme. Most significantly, it provides a constitutional account for why agencies may exercise this specification power as a formalist matter, even if they cannot have final say over the interpretation of law. If this account is correct, then calls to overturn modern judicial deference may be overblown if agencies are usually exercising their powers not of interpretation, but of specification.

INTRODUCTION I. THE STANDARD DEBATE A. Chevron and Its Rationales B. The Case Against Deference: Article III C. The Case for Deference: Interstitial Lawmaking D. Policymaking and the Interpretation-Construction Distinction II. INTERPRETATION AND SPECIFICATION A. The Executive's Incidental Interpretation Power B. The Executive's Specification Power 1. Early Examples 2. Youngstown 3. An Analogy III. THE CONSTITUTIONAL BASIS A. Nonexclusive Legislative Power B. The Prerogative Specification Power IV. IMPLICATIONS A. Judging in a World Without Chevron 1. Advancing the Debates 2. Revisiting Chevron and Its Predecessors 3. Objections, and a Note on Judicial Power B. Enforcing Nondelegation (As-Applied) C. Interpretative Rules and Hard-Look Review V. CONCLUSION INTRODUCTION

The executive power to interpret law is at the center of modern debates over administrative law and the separation of powers. The doctrine announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council holds that courts must defer to an agency's reasonable interpretation of an ambiguous statute that it administers. (1) The doctrine is justified on at least two grounds: when Congress enacts statutes with ambiguities, Congress is presumed to delegate implicitly to the agencies the authority to resolve those ambiguities; (2) and agencies are more politically accountable, technically expert, and institutionally competent than courts to do so. (3)

Chevron's "canonical" (4) status in administrative law, however, may be fraying. Critics have noted the apparent inconsistency between Chevron deference and the Administrative Procedure Act ("APA"), which provides in [section] 706 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." (5) Deference to executive interpretations also appears inconsistent with the structural separation of powers: Article III assigns the judicial power to "say what the law is" (6) to judges with life tenure and salary protections so they may exercise their legal judgment while insulated from the political accountability that seems to justify Chevron deference. (7) Finally, recent scholarship has suggested that historically courts may have respected only those executive interpretations that were contemporaneous with the enactment of the law or were longstanding, and were thus good evidence of what the law actually was. (8) For these reasons, even former Justice Kennedy has joined calls from his more formalist colleagues to reconsider "the premises that underlie Chevron." (9)

Many scholars, however, maintain that deference is inevitable. Nicholas Bednar and Kristin Hickman recently argued, for example, that Chevron deference, or something much like it, "is a necessary consequence of and corollary to Congress's longstanding habit of relying on agencies to exercise substantial policymaking discretion to resolve statutory details." (10) Unless Congress assumes "substantially more responsibility for making policy choices itself" or the courts "reinvigorate the nondelegation doctrine," they write, "some variant of Chevron deference will be essential to guide and assist courts from intruding too deeply into a policy sphere for which they are ill-suited." (11) A veritable legion of scholars has argued that deference is inevitable because the interpretation of broad statutory standards requires policymaking discretion, or the resolving of statutory "ambiguities" is for policymakers. (12) And legal realists maintain that all interpretation inherently entails policymaking. (13)

In short, when agencies implement statutory schemes, the doctrine treats their actions as "interpretations." (14) This then raises the question of how much courts ought to defer to such interpretations of law, a question that remains unresolved by courts and scholars. The claim here is that this debate has stalled because, although the doctrine treats agency implementations of statutes as interpretation, something else is in fact usually going on. Agencies do interpret law as an incident to enforcing the law, but they also do something else: they exercise a kind of interstitial lawmaking, gap-filling, policymaking power where the statute is clear but does not specify a course of action, a power that I shall call the "specification power."

Although many deference proponents have intuited that agencies are doing something along these lines, they have been unable to escape the doctrinal vocabulary of interpretation and therefore have failed to provide an accurate descriptive or constitutional account of this power. (15) A few scholars have recognized that the doctrine seems to conflate two different powers or activities, (16) but none provides a complete constitutional account of why agencies may exercise this policymaking power, nor provides a satisfactory account of what distinguishes the "interpretation" that agencies do from their "policymaking." (17) This Article supplements the work of these scholars, illustrating the distinction between interpretation and "specification" and providing arguments from the Constitutions text, structure, and history for why agencies may exercise this specification power.

American legal history is replete with examples of the exercise of both kinds of power. In the 1840 case of Decatur v. Paulding, the Court was confronted with two statutes, one which granted a pension to all widows of naval service members, and another which granted a pension specifically to the widow of Commodore Stephen Decatur. (18) Mrs. Decatur sought to collect both pensions. (19) The Court recognized that the interpretation of this law could leave room for discretion and even disagreement, and thus the Court would not compel the executive to adopt one interpretation over another through a writ of mandamus. (20) But the Court also noted that had a nonmandamus action been brought, then "the Court certainly would not be bound to adopt the construction given by the head of a department" because in such cases it is the Court's "duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them." (21)

On the other hand, one of the earliest federal statutes provided that the military pensions that had been granted and paid by the states pursuant to the acts of the Confederation Congress to the wounded and disabled veterans of the Revolutionary War "shall be continued and paid by the United States, from the fourth day of March last, for the space of one year, under such regulations as the President of the United States may direct." (22) President Washington's regulations stated that the sums owed were to be paid in "two equal payments," the first on March 5, 1790, and the second on June 5, 1790, and that each application for payment was to be accompanied by certain vouchers as evidence that the invalid served in a particular regiment or vessel at the time he was disabled. (23)

This is a particularly clear example of an executive officer exercising a power not of interpretation, but of what we might call specification. The regulation concerning two equal payments to be made three months apart was certainly a reasonable interpretation of the statute, which required the payments to be made within one year. Yet the executive could have chosen any number of other options: daily installments for the entire year, three installments at varying intervals to be completed within the year, and so on. Each of these options, in and of itself, would have been a reasonable interpretation of the statute because the statute only required such payments to be made within a year.

The act of choosing among these various possible interpretations, however, was not an act of interpretation. Nothing in the statute demanded one regulation over another; all would have been reasonable interpretations because all would have been permitted by the statute. The choice among these options, then, was not an act of interpretation, and that choice requires a different vocabulary. I suggest the term "specification": the executive officers specified this detail of implementation--this course of action--within the bounds of what the statute permitted but without more specific direction from the statute itself. Nothing in the statute bore on their choice, so long as it was within the range of options created by the best interpretation of the statute's limits.

Now consider another case: A statute provides that a "stationary source" is defined as "any building, structure, facility, or installation" which emits air pollution. The statute does not say, however, what to do when more than one of these definitions applies, for example when...

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