Toward a constitutional Chevron: lessons from Rapanos.

• Author: Brader, Cory Ruth

INTRODUCTION I. CONSTITUTIONAL INTERPRETATION OUTSIDE THE COURTS II. WETLANDS: NAVIGATING TRICKY WATERS III. THREE COMPETING STRANDS OF COMMERCE CLAUSE INTERPRETATION A. Judicial Interpretations of "Waters of the United States" B. Legislative Pushback: Congress and "Waters of the United States" C. Executive Interpretation IV. AGENCY INTERPRETATION OF "WATERS OF THE UNITED STATES" A. Canons of Agency Interpretation B. The Guidance: Procedural and Substantive V. IMPLEMENTING THE GUIDANCE: A CASE STUDY OF JURISDICTIONAL DETERMINATIONS A. An Overview of Jurisdictional Determinations and Section 404 Permitting B. How Rapanos Has Changed the JD Process 1. Procedural Density: Undermining the Limited Precedential Value of JDs 2. Scientificolegal Reasoning VI. TOWARD A CONSTITUTIONAL CHEVRON: AGENCY EXPERTISE AND THE CONSTITUTION CONCLUSION INTRODUCTION

In 2006, the Supreme Court started a revolution in environmental law. In Rapanos v. United States, (1) while addressing jurisdiction over wetlands under the Clean Water Act, the Court purported to clarify an issue of statutory interpretation. In reality, the Court had reentered the fray in a four-way struggle for supremacy in constitutional meaning. This struggle involves all three branches of government and, to a large extent, the federal agencies that implement the Constitution as part of their everyday function: the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA).

The Rapanos decision was widely criticized when it was handed down, (2) but there has been no real empirical analysis of how the decision has affected the agencies' on-the-ground interpretations of their own jurisdiction. In this Comment, I examine the fallout from Rapanos-beginning with its impact on the judicial, legislative, and executive branches--and then focus on its impact on the Corps's process for determining its own jurisdiction. Procedurally, the main effect of the decision has been to add density to the Corps's already onerous permitting process. (3) Substantively, the decision has forced the Corps to add an unnecessary judicial gloss to its scientific determinations, imposing court-like reasoning onto professional engineers. (4) Perhaps worst of all, the increased enforcement costs of these changes have been shifted to the regulated community. All players in the game--developers seeking quick disposition of permitting requests, environmentalists pursuing wetlands protection, and agency personnel tasked with making jurisdictional determinations--have come out as losers after Rapanos.

Based on these findings, I propose a radical shift in judicial review of agency constitutionalism and argue that the Court should apply the Chevron doctrine (5) to certain agency constitutional interpretations. In particular, where Congress has clearly delegated constitutional definition to an agency and such definition implicates agency expertise, courts should explicitly grant Chevron deference to the agency constitutional interpretation. This paradigm would allow Congress the broadest possible latitude in exercising its power and would restore the institutional benefits lost when courts impose judicial constraints on administrative agencies that operate differently from the courts by design. Thus, when Congress clearly delegates constitutional interpretation to agency expertise, the judiciary should defer to the agency's interpretations so long as they are reasonable.

Part I provides a brief overview of scholarship exploring the role that extrajudicial actors play in constitutional interpretation. Part II introduces wetlands, explains their importance, and discusses the Clean Water Act, the statute that underlies their regulation. Part III explores each branch's interpretation of the Clean Water Act under the Commerce Clause, addressing the Supreme Court's recent jurisprudence, including the Rapanos decision, as well as congressional and executive responses. Part IV turns to how the agencies have interpreted their collective jurisdiction under the Clean Water Act, discussing both general principles of agency statutory interpretation and the narrow issue of how the EPA and the Corps have responded to Rapanos. Part V provides a case study of agency constitutional interpretation, examining a series of jurisdictional determinations by the Corps to demonstrate that Rapanos has resulted in increased bureaucracy, undermined the agencies' flexibility, and forced courtlike procedures and reasoning onto an expert agency. Finally, Part VI uses these conclusions to argue that the Court should abandon its current treatment of agency constitutional interpretation and instead adopt Chevron deference where Congress has clearly delegated constitutional interpretation to agency expertise. While this would represent a radical shift in judicial oversight, I argue that this degree of deference is the only mechanism by which Congress and agencies can protect fundamental interests such as the environment; respond appropriately to advances in scientific knowledge; and enforce the underlying purpose of statutes without being tethered to a rigid, textual interpretation of constitutional mandates.

1. CONSTITUTIONAL INTERPRETATION OUTSIDE THE COURTS

   In the conventional narrative of American law, the Supreme Court functions as the primary, if not exclusive, interpreter of the U.S. Constitution. (6) Recently, however, scholars and citizens alike have begun exploring to what extent, under what authority, and through what normative lens nonjudicial actors interpret the Constitution. (7) This inquiry has focused both on actors outside of government, such as social movements, and other governmental institutions, such as the executive and legislative branches. (8) Theorists have primarily addressed three questions: First, to what extent, and with what analytical tools, are nonjudicial actors interpreting the constitution? (9) Second, what effect have nonjudicial interpretations had on judicial opinions interpreting the Constitution and on the evolution of constitutional scholarship and meaning in the United States? (10) Third, as a normative matter, who should have ultimate interpretive authority: courts, another branch of government, the "people," or some combination of all three? (11)

   The goal of this scholarship has been to question and expand upon the traditional judge-centric view of constitutional interpretation. Instead of a world in which the Supreme Court hands down constitutional rulings and functions as the ultimate arbiter of constitutional meaning, these scholars see much of the practical identification of constitutional parameters as being performed by extrajudicial actors; including administrative agencies; (12) the executive and legislative branches; (13) and the American people themselves via social movements and other mechanisms. (14)

   The role of administrative agencies in performing constitutional interpretation has been relatively underexplored. (15) Nominally functioning under statutory authority, agencies face opportunities for constitutional interpretation quite frequently in practice. (16) For example, Professor Reuel Schiller traced the influence of the Federal Communications Commission (FCC) on modern First Amendment doctrine. His analysis showed that the FCC, in regulating broadcast speech, maintained the autonomy to resist restrictive applications of the First Amendment, and served as the primary constitutional decisionmaker for free speech rights. (17) Similarly, Professor Sophia Lee's archival research into agency behavior during the 1960s revealed contrasting visions of discrimination policy under the Fourteenth Amendment between the FCC and the Federal Power Commission (FPC), uncovering a seminal, and previously unnoticed, instance of agency constitutionalism. (18) Conventional wisdom holds the Constitution to be fixed in meaning, requiring the expert analysis of the judiciary, but in many contexts the Constitution's meaning is indeterminate, open to interpretation, and largely unaddressed by the courts. (19) It is in this vast space of indeterminate constitutional meaning that agencies can, do, and should interpret the Constitution directly.

   Since this practical reality of on-the-ground agency constitutional interpretation is at odds with the traditional judge-centric vision of constitutional definition, this type of constitutionalism has received little attention from scholars and even less respect from the courts. (20) Typically, a court reviewing an agency's interpretation of a statute will apply Chevron deference, a two-step inquiry that favors the agency's interpretation. (21) First, if the statute at issue has a clear meaning, that meaning will prevail. (22) If the statute's meaning is ambiguous, the court will proceed to the second step, in which it will defer to the agency's interpretation so long as it is "reasonable." (23) As Justice Stevens, writing for the Court in Chevron, explained, "[t]he 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 responsibilities in the political branches.'" (24)

   In reviewing agency constitutional interpretations, however, courts do not apply Chevron deference. Instead, courts refuse to defer if the challenged action raises "serious" constitutional issues. (25) Given the wide range of circumstances in which agencies interpret the Constitution, this disparate treatment requires further examination. The remainder of this Comment conducts such an inquiry through the lens of agency jurisdiction under the Clean Water Act, examining interpretations by the Supreme Court, Congress, the Executive, and, finally, the agencies themselves. My findings demonstrate that the Supreme Court should articulate a separate standard of review for agency constitutional interpretation: courts should...