The Nontextual and Made Up Chevron Doctrine

In my last post, I discussed how the Chevron doctrine – which grants administrative agencies the power to choose any reasonable interpretation of statutes that they administer – allows agencies additional legislative power and therefore exacerbates the combining of legislative and executive powers of the administrative state.  Here, I want to explain why the doctrine is made up and nontextual — and therefore should never have been endorsed by Justice Scalia.

As the Court freely admits, the Chevron doctrine does not emanate from any statutory text.  It is an inference – I would say an assumption – that the Court makes that any ambiguous language was intended to delegate to the agencies.  But as the Chevron case itself admitted, this assumption is not necessarily grounded in Congress’s intent.  When Congress uses ambiguous language, there are many reasons why it might have done so other than intended to delegate the power to resolve that ambiguity to an administrative agency.

Textually, nothing in these statutes says that the agencies should resolve the ambiguity.  Instead, there is an applicable text that speaks to the issue – and says that there should be no deference to the agency.  The Administrative Procedure Act, passed in 1946, states that a reviewing court should “decide all relevant questions of law.”  It does not state that it should leave those questions to agencies. In addition, the legislative history of the APA confirmed in several different places the same conclusion.   In fact, Justice Scalia admits that the enacting Congress was laboring “under the quite mistaken assumption that questions of law would always be decided de novo by the courts.”

The question is how Justice Scalia can ignore this evidence.  While he might argue that the legislative history is not binding, he cannot push to the side the text of the APA.  Things get even worse.  Justice Scalia admits that the APA created an exception from the ordinary procedures for enacting rules for “interpretative rules” because such rules would not be authoritative.  He then writes that this era of not granting deference to interpretative rules “came to an end with our watershed decision in Chevron.”  See Scalia dissent in Christensen v. Harris County (2000).  How odd?  I didn’t think that Scalia believed that the Supreme Court could ignore or amend a federal statute.

What accounts for such odd behavior on Scalia’s part?  It is hard to know, but my guess is that Scalia formed his views back in the 1980s, on the D.C. Circuit, when the conservative judges were reacting against the activist liberal judges of that court who had departed from the law, on a case by case basis, to micromanage the agencies.  Chevron seemed, to these judges, to be a desirable response to the liberal judges.  The problem is that Chevron has no more basis in the law than the activism of the D.C. Circuit liberals.

Reader Discussion

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on April 22, 2013 at 11:56:08 am

"Should decide all questions of law" hardly indicates how the court is to decide, and while you argue that deference is a bad way, you don't actually propose any superior way. Indeed, your favored interpretive method, textualism, can't provide the answer, because Chevron Step One already looks for clear textual meaning; if it finds it, then that's that.

Nor do you define what you think the "legislative" power is in any of these recent posts. It's not at all a self-evident concept (see Federalist No. 37 for Madison ruminating on the same). When there is ambiguous text, those in the executive branch must do something with it. What is it that you would have them do that would steer clear of your definition of "legislative"?

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Philip W
on April 22, 2013 at 14:32:53 pm

1. I will be putting up a post on how Chevron cases should be handled instead.
2. Should decide all questions of law does not indicate that no deference (unless the organic statute says so).
3. There are hard questions of defining legislative power, but certainly it does not include delegations to pursue the public interest. And very likely it does not include even more constraining delegations. Exactly where you draw the line though might be difficult, but a great many delegations would be unconstitutional under any plausible line.

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Mike Rappaport

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