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Tug of Democracy

Justices Pull for America’s Separation of Powers

by Randolph J. May
Legal Times, July 9, 2001

In “Toppling Rules” (June 25, 2001, Page 75), Thomas W. Kirby claims that with the Supreme Court’s June 18 decision in United States v. Mead Corp., the “ground rules for judicial review of agency decisions changed dramatically.” Kirby is upset because, in his view, “Mead rejects Chevron’s teaching that every statutory ambiguity implies agency power to provide an authoritative rule.”

For better or worse—and in my opinion it’s for worse—Kirby has bought into Justice Antonin Scalia’s view, expressed in lonely dissent, that Mead makes an “avulsive” change in the law and is “irresponsible.” Indeed, Kirby apparently agrees that Mead’s consequences are likely to be “enormous” and “almost uniformly bad.”

I disagree. In Chevron U.S.A. v. Natural Resources Defense Council (1984), the Court articulated what was, in some sense, a new rule for judicial review of administrative interpretation of statutes. If a statute is ambiguous, then the courts must defer to reasonable administrative interpretations of the statute’s meaning. Chevron represented a departure in administrative law jurisprudence. But until Mead, the extent to which it represented a change from the government structure that the Constitution’s framers envisioned has remained unclear.


Before Chevron, courts typically applied a weaker form of deference to agency interpretations, based on the Court’s decision in Skidmore v. Swift & Co. (1944). The extent of deference depended on a variety of factors, such as the consistency of the agency’s reasoning and persuasiveness and the agency’s relative expertness. As a practical matter, after Chevron, invocation of its strong form of “controlling weight” deference has meant the agencies have much greater leeway to make law, rather than merely carry it out.

The Supreme Court in Chevron justified the deference standard there on the theory that a statute’s ambiguity constitutes an “implicit delegation” of lawmaking authority. And it defended its assignment of interpretive authority to the executive branch on the basis that it is more appropriate for “this political branch of the Government to make such policy choices.”

The extent to which Chevron has a real-world impact depends, in large part, on whether its controlling deference standard applies across the entire range of administrative actions or to some lesser number. And contrary to the intimations of Kirby and Scalia, Chevron itself did not make clear, nor was it ever made clear thereafter, how broadly it applies to the wide range of administrative practices.

Last term in Christensen v. Harris County (2000), the Court addressed the issue of Chevron’s reach more frontally than it had in many years, stating:

“Here . . . we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rule making. Interpretations such as those in opinion letters, like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.”

Nevertheless, because this formulation used illustrative rather than prescriptive language, when the Court shortly thereafter granted certiorari in Mead, it appeared the Court might use the case to delineate the bounds of Chevron’s reach more definitively. And, in an important respect, it did.

The issue in Mead was whether a Customs Service ruling letter classifying Mead’s imported “day planners” as “bound diaries” subject to duty under the statutory tariff schedules was entitled to Chevron deference. Congress delegated to the Customs Service the authority to prescribe regulations for the issuance of “binding rulings” concerning classification of imports under the statutory tariff schedules. But the agency’s own implementing regulation provides that a ruling is binding only on Customs Service personnel, not the public at large.

Writing for the majority, Justice David Souter agreed with Mead that the Customs Service’s classification ruling was not entitled to Chevron deference. The Court said that an administrative interpretation qualifies for Chevron deference “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”

Delegation of such authority “may be shown in a variety of ways, as by an agency’s power to engage in adjudication or notice-or-comment rulemaking, or by some other indication of a comparable congressional intent.”

The Court added: “It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.” As Scalia argues, the majority’s formulations still leave the precise scope of Chevron’s reach unclear. We don’t know, for example, whether various types of informal adjudications will receive Chevron deference.


So Kirby is correct that “informal victories will be less secure.” In this sense, the decision is unsatisfying in the way that ambiguity generally unsettles. But notwithstanding the impulse for simplification upon which Scalia draws, the majority opinion is more faithful to our tripartite constitutional structure that places a premium on separation of powers.

Scalia’s approach, which affords Chevron deference to any authoritative agency interpretation, regardless of the lack of formality with which it is rendered, too severely limits the judiciary’s role in explaining what the law means. While in Chevron the Court bottomed the new rule on the doctrinal premise that Congress intends for statutory ambiguities to be resolved by the executive branch, it is often very difficult to discern in specific cases whether Congress intends to grant the agency the lawmaking authority that Chevron deference necessarily confers. Despite the superficial appeal of Scalia’s more simplistic approach, the majority is almost certainly correct in stating “it is simply implausible that Congress intended such a broad range of statutory authority to produce only two varieties of administrative action, demanding either Chevron deference or none at all.”

Scalia himself acknowledges an important reason for not assuming that Congress intends that all manner of administrative interpretations of statutes receive strong deference. The Administrative Procedure Act, the overarching framework governing most administrative practice, provides that, in reviewing agency action, courts shall “decide all relevant questions of law, [and] interpret constitutional and statutory provisions.” Scalia concedes that “[t]here is some question whether Chevron was faithful to the text of the [APA], which it did not even bother to cite.” Indeed, Kirby admits to “puzzlement” at the Court’s failure to grapple with this point. With faithfulness to the basic charter of the administrative state in question, the Mead majority’s reluctance to infer congressional intent for a very expansive conferral of agency lawmaking authority makes sense.

And the majority’s refusal to expand Chevron’s reach to all manner of agency actions, no matter how informal or closed to public participation, is right for a more fundamental reason as well. It is more faithful to the constitutional structure envisioned by the Founders in which it is the function of the third branch, not the second, to, as John Marshall declared in Marbury v. Madison, “say what the law is.” The Founders understood that law is inherently somewhat indeterminate. As James Madison stated in The Federalist No. 37, with some hyperbole to be sure, “All new laws though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered more or less obscure and equivocal.”

This recognition did not, however, lead the Founders to devise a system that would countenance wholesale transfer of the legislature’s lawmaking function to the executive branch simply because the chief executive is also politically accountable. Rather, as Alexander Hamilton explained in The Federalist No. 78, it would be up to the courts, having “neither FORCE nor WILL but merely judgment” to “declare the sense of the law.” The point in distinguishing “will” from “judgment” was to emphasize that law interpretation should be the province of the judiciary precisely because judges are insulated from political influence.

So, by rejecting an understanding of Chevron in which the agencies would be free to resolve more statutory ambiguities and the courts less, the Court opted for a regime that may lead to less certainty about the outcome of particular cases. In doing so, it was faithful to the regime envisioned by the Founders in which the pulling and tugging among the branches at the inherently ambiguous boundaries of their authority helps protect against accumulations of power that would threaten the liberties of us all. That’s worth considering while Independence Day is still fresh in our minds.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

© 2002 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times (1-800-933-4317 • subscriptions@legaltimes.com • www.legaltimes.biz).



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