Chevron's nondelegation doctrine

Supreme Court Review

Volumn 2001, Issue , 2001, Pages 201-263

  Barron, David J ^a   Kagan, Elena ^a  

^a NONE

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EID: 0039561177     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.2001.3109689     Document Type: Article

References (237)

1. 467 US 837 (1984).
2. 121 S Ct 2164 (2001).
3. Thomas W. Merrill and Kristin E. Hickman, Chevron's Domain, 89 Georgetown L J 833 (2001).
4. 121 S Ct at 2177 (Scalia dissenting).
5. 5 USC §§ 551-59, 701-06 (1994 & Supp IV 1998).
6. Chevron, 467 US at 842.
7. Id at 845.
8. See, e.g., INS v Aguirre-Aguirre, 526 US 415 (1999); ABF Freight System, Inc. v NLRB, 517 US 392 (1996); Fort Stewart Schools v FLRA, 495 US 641 (1990).
9. See, e.g., Bob Evans Farms, Inc. v NLRB, 163 F3d 1012, 1018-19 (7th Cir 1998) (holding that the NLRB's adjudicative decisions merit Chevron deference only when they have an inherently rulemaking quality); Trans Union Corp. v FTC, 81 F3d 228, 230-31 (DC Cir 1996) (addressing but not deciding the question whether Chevron deference applies to the adjudications of an agency lacking rulemaking authority); Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and the Courts? 7 Yale J Reg 1, 47-52 (1990) (proposing a multifaceted scheme for determining which agency adjudications are entitled to Chevron deference).
10. See 5 USC § 553(a), (b)(B) (stating subject matter and "good cause" exemptions from notice-and-comment requirements); Merrill and Hickman, 89 Georgetown L J at 905-07 (cited in note 3) (discussing these issues).
11. Peter L. Strauss, The Rulemaking Continuum, 41 Duke L J 1463, 1467 (1992).
12. Compare, e.g., Wagner Seed Co. v Bush, 946 F2d 918, 922-23 (DC Cir 1991) (granting Chevron deference to interpretive rules), with, e.g., S. Ute Indian Tribe v Amoco Production Co., 119 F3d 816, 832-34 (10th Cir 1997) (denying Chevron deference to interpretive rules), revd on other grounds, 526 US 865 (1999).
13. Compare, e.g., Owsley v San Antonio Independent Sch. D., 187 F3d 521 (5th Cir 1999) (denying Chevron deference to an opinion letter), with, e.g., Herman v Nationsbank Trust Co., 126 F3d 1354 (11th Cir 1997) (granting Chevron deference to an opinion letter).
14. Juan J. Lavilla, The Good Cause Exemption to Notice and Comment Rulemaking Requirements Under the Administrative Procedure Act, 3 Admin L J 317, 339-40 nn 86-87 (1989). Of the 2,061 rules (excluding technical corrections) published in this time period, 900 issued without notice and comment - 547 explicitly relying on the good-cause exemption, 164 implicitly doing so, and 189 resting on another APA exemption. See id. In about one-fourth of the good-cause cases, however, the agency requested post hoc comments for consideration prior to the agency's issuing the rule in final form. See id at 412.
15. See Strauss, 41 Duke L J at 1469 (cited in note 11). As Strauss notes, "formally adopted regulations of the Internal Revenue Service occupy about a foot of library shelf space, but Revenue Rulings and other similar publications, closer to twenty feet; [and] the rules of the Federal Aviation Administration (FAA), two inches, but the corresponding technical guidance materials, well in excess of forty feet." Id.
16. See Peter L. Strauss, An Introduction to Administrative Justice in the United States 142 (Carolina Academic Press, 1989).
17. 529 US 576 (2000).
18. The county adopted the policy to avoid paying monetary compensation to employees who left their jobs with substantial reserves of compensatory time or who exceeded a statutory cap on accrual.
19. 529 US at 587.
20. Id.
21. 323 US 134, 140 (1944).
22. 529 US at 587.
23. 19 USC § 1500(b).
24. 19 USC § 1202.
25. 19 USC § 1502(a).
26. 19 CFR § 177.8(a); see 19 CFR § 177.2(b)(2)(ii)(B).
27. 19 CFR § 177.9(a).
28. Id.
29. See 19 CFR § 177.9(c). Subsequent to the Customs decision in Mead, Congress amended the Tariff Act to provide for public notice and an opportunity to comment prior to any modification of a ruling in effect for at least sixty days. See 19 USC § 1625(c). Even prior to the statutory change, which had no effect on Mead, the Treasury Department's regulations provided that the Customs Service would give notice to the initial addressee before modifying a ruling letter and would refrain from retroactively applying the modification to that person except in unusual circumstances. See 19 CFR § 177.9(d)(2).
30. 19 CFR § 177.9(c).
31. Subheadings 4820.10.20, 4820.10.40, of the HTSUS, 19 USC § 1202.
32. See NY 864206 (June 19, 1991) (Jean F. McGuire, Area Director, New York Seaport), 1991 US Custom NY LEXIS 344.
33. See HQ 955937 (Oct 21, 1994), 1994 WL 712863; HQ 953126 (Jan 11, 1993), 1993 WL 68471. The first headquarters ruling followed from a request by the port-of-entry official for central review of her decision, the second from Mead's own administrative protest.
34. 17 F Supp 2d 1004 (1998).
35. 185 F3d 1304 (1999).
36. 121 S Ct at 2172.
37. Id at 2176.
38. Id at 2172.
39. Id at 2174.
40. Id at 2173 (citing NationsBank of NC, NA v Variable Annuity Life Insurance Co., 513 US 251, 256-57, 263 (1995) (deferring, on grounds of long-standing precedent, to the Controller of the Currency's determination to grant a national bank's application to broker annuities)).
41. Id at 2187.
42. 467 US at 865-66.
43. Id at 865, 845.
44. For discussion of these competing rationales and their treatment in the courts, see Merrill and Hickman, 89 Georgetown L J at 867-72 (cited in note 3); John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex L Rev 113, 203-07 (1998).
45. For discussion of these competing rationales and their treatment in the courts, see Merrill and Hickman, 89 Georgetown L J at 867-72 (cited in note 3); John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex L Rev 113, 203-07 (1998).
46. For variants of this argument, which has received more attention from scholars than courts, see Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the Nondelegation Doctrine, 2 Admin L J 269, 278, 287-90 (1988); Kenneth W Starr, Judicial Review in the Post-Chevron Era, 3 Yale J Reg 283, 308 (1986); Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in Administrative Law, 64 Tex L Rev 469, 520-24 (1985).
47. For variants of this argument, which has received more attention from scholars than courts, see Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the Nondelegation Doctrine, 2 Admin L J 269, 278, 287-90 (1988); Kenneth W Starr, Judicial Review in the Post-Chevron Era, 3 Yale J Reg 283, 308 (1986); Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in Administrative Law, 64 Tex L Rev 469, 520-24 (1985).
48. For variants of this argument, which has received more attention from scholars than courts, see Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the Nondelegation Doctrine, 2 Admin L J 269, 278, 287-90 (1988); Kenneth W Starr, Judicial Review in the Post-Chevron Era, 3 Yale J Reg 283, 308 (1986); Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in Administrative Law, 64 Tex L Rev 469, 520-24 (1985).
49. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L J 511, 514.
50. Id at 516 (quoting Process Gas Consumers Group v Department of Agriculture, 694 F2d 778, 791 (DC Cir 1982) (en banc)). Justice Scalia also rejected the constitutional rationale, arguing that separation-of-powers principles permitted courts to engage in the kind of policymaking incident to statutory interpretation. See id at 515-16.
51. Id at 517.
52. Smiley v Citibank (SD), NA, 517 US 735, 740-41 (1996).
53. See Merrill and Hickman, 89 Georgetown L J at 863 (cited in note 3) ("The Court, in recent descriptions of the Chevron doctrine, has rather consistently opted for the congressional intent theory.").
54. Scalia, 1989 Duke L J at 514 (cited in note 46).
55. 121 S Ct at 2177.
56. For arguments along this line, see sources cited in note 45.
57. Marbury v Madison, 5 US (1 Cranch) 137, 177 (1803). For an argument to this general effect, see Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum L Rev 452, 476 (1989) ("It is surely a far more remarkable step than Chevron acknowledged to number among Congress's constitutional prerogatives the power to compel courts to accept and enforce another entity's view of legal meaning whenever the law is ambiguous.").
58. See Edward J. DeBartolo Corp v Florida Gulf Coast Building & Construction Trades Council, 485 US 568, 575 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."); Ashwander v TVA, 297 US 288, 348 (1936) (Brandeis concurring).
59. Consider Bowsher v Synar, 478 US 714, 749 (Stevens concurring) ("[A]s our cases demonstrate, a particular function, like a chameleon, will often take on the aspect of the office to which it is assigned. For this reason, '[w]hen any Branch acts, it is presumptively exercising the power the Constitution has delegated to it.'") (quoting INS v Chadha, 462 US 919, 951 (1983)).
60. See, e.g., Scalia, 1989 Duke L J at 517 (cited in note 46) (describing Chevron as "a background rule of law against which Congress can legislate"); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale L J 969, 978 (1992) (referring to Chevron as a "default rule," which Congress can change).
61. See, e.g., Scalia, 1989 Duke L J at 517 (cited in note 46) (describing Chevron as "a background rule of law against which Congress can legislate"); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale L J 969, 978 (1992) (referring to Chevron as a "default rule," which Congress can change).
62. See, e.g., Gramm-Leach-Bliley Act, Pub L No 106-102, 113 Stat 1409 (1999), codified at 15 USC § 6714(e) (2000) (providing that in a dispute between federal and state insurance regulators over the preemptive effect of a federal statute, the court shall decide the issue "without unequal deference").
63. See Merrill and Hickman, 89 Georgetown L J at 873-89 (cited in note 3); Duffy, 77 Tex L Rev at 199-203 (cited in note 44); Anthony, 7 Yale J Reg at 36-40 (cited in note
64. See Merrill and Hickman, 89 Georgetown L J at 873-89 (cited in note 3); Duffy, 77 Tex L Rev at 199-203 (cited in note 44); Anthony, 7 Yale J Reg at 36-40 (cited in note
65. See Merrill and Hickman, 89 Georgetown L J at 873-89 (cited in note 3); Duffy, 77 Tex L Rev at 199-203 (cited in note 44); Anthony, 7 Yale J Reg at 36-40 (cited in note
66. Merrill and Hickman, 89 Georgetown L J at 837 (cited in note 3); Anthony, 7 Yale J Reg at 3 (cited in note 9).
67. Merrill and Hickman, 89 Georgetown L J at 837 (cited in note 3); Anthony, 7 Yale J Reg at 3 (cited in note 9).
68. See text accompanying note 20; see also EEOC v Arabian American Oil Co., 499 US 244, 257 (1991) (declining to give deference to the EEOC's interpretation of Title VII because that statute does not give the EEOC rulemaking authority); Martin v Occupational Safety and Health Review Commission, 499 US 144, 157 (stating in dicta that the interpretive rules of an agency lacking rulemaking power are not entitled to "the same deference as norms that derive from the exercise of . . . delegated lawmaking powers").
69. 121 S Ct at 2171; see id at 2172 (also making reference to the "force of law"). The oddity of this statement, given that the ruling letter had the force of law as to the importer in question, is explicable in either of two ways. First, the Court may have used the phrase "force of law" here to refer only to an agency action that would have controlling effect on a reviewing court, as distinct from an action that would have binding legal effect on a party. But if that is the case, the "force of law" concept is doing no work at all: the Court might just as well have said that an agency interpretation "qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules qualifying for Chevron deference," with the question still left open how to determine whether such a delegation has taken place. Second, the Court may have believed it necessary for the agency action in question to have binding legal effect not only on the single importer but on all others in the same position. See id at 2174 (noting that "a letter's binding character as a ruling stops short of third parties"); text accompanying note 39. The Court's position then would comport with Merrill and Hickman's view that to have the "force of law," for purposes of Chevron, an agency action must legally bind not only the parties involved, but also "other agency personnel," in the sense that they will treat the action as controlling in future cases, involving other parties, that raise the same issue. See Merrill and Hickman, 89 Georgetown L J at 908 (cited in note 3). But this reasoning ill comports with ordinary notions of when a decision has force of law - in Merrill and Hickman's own words, "when, of its own force and effect, it commands certain behavior and subjects parties to penalties or sanctions if they violate this command." Id at 881. The reasoning in fact substitutes another criterion - generality - for the supposed criterion of force of law in the effort to determine congressional intent as to deference. We consider later in this part, see text accompanying notes 68-70, the relationship of generality, as well as of procedural formality, to understandings of this congressional intent.
70. Section 706 of the APA provides that "[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law [and] interpret constitutional and statutory provisions." 5 USC § 706. Some scholars have suggested that this provision in fact requires independent judicial review of interpretive judgments, thus precluding Chevron deference. See, e.g., Cass R. Sunstein, Law and Administration After Chevron, 90 Colum L Rev 2071, 2080-81, 2086 (1990); Farina, 89 Colum L Rev at 472-73 (cited in note 54). The issue never has troubled the Court unduly, nor do we think it should. As Sunstein himself concedes, the interpretive decisions that the court shall render under Section 706 may incorporate some measure of judicial deference; the courts, in other words, can decide the relevant legal question by holding that the agency is entitled to deference in some sphere and then policing its limits. See 90 Colum L Rev at 2081 n 46. The APA thus may well leave the level of deference to the courts, presumably to be decided according to common law methods, in the event that an organic statute says nothing about the matter. See John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum L Rev 612, 635 (1996) (noting that the APA's provisions on judicial review contain "faint expressions of legislative purpose" and "came from a tradition that used flexible common law methods to review administrative action").
71. Section 706 of the APA provides that "[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law [and] interpret constitutional and statutory provisions." 5 USC § 706. Some scholars have suggested that this provision in fact requires independent judicial review of interpretive judgments, thus precluding Chevron deference. See, e.g., Cass R. Sunstein, Law and Administration After Chevron, 90 Colum L Rev 2071, 2080-81, 2086 (1990); Farina, 89 Colum L Rev at 472-73 (cited in note 54). The issue never has troubled the Court unduly, nor do we think it should. As Sunstein himself concedes, the interpretive decisions that the court shall render under Section 706 may incorporate some measure of judicial deference; the courts, in other words, can decide the relevant legal question by holding that the agency is entitled to deference in some sphere and then policing its limits. See 90 Colum L Rev at 2081 n 46. The APA thus may well leave the level of deference to the courts, presumably to be decided according to common law methods, in the event that an organic statute says nothing about the matter. See John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum L Rev 612, 635 (1996) (noting that the APA's provisions on judicial review contain "faint expressions of legislative purpose" and "came from a tradition that used flexible common law methods to review administrative action").
72. Section 706 of the APA provides that "[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law [and] interpret constitutional and statutory provisions." 5 USC § 706. Some scholars have suggested that this provision in fact requires independent judicial review of interpretive judgments, thus precluding Chevron deference. See, e.g., Cass R. Sunstein, Law and Administration After Chevron, 90 Colum L Rev 2071, 2080-81, 2086 (1990); Farina, 89 Colum L Rev at 472-73 (cited in note 54). The issue never has troubled the Court unduly, nor do we think it should. As Sunstein himself concedes, the interpretive decisions that the court shall render under Section 706 may incorporate some measure of judicial deference; the courts, in other words, can decide the relevant legal question by holding that the agency is entitled to deference in some sphere and then policing its limits. See 90 Colum L Rev at 2081 n 46. The APA thus may well leave the level of deference to the courts, presumably to be decided according to common law methods, in the event that an organic statute says nothing about the matter. See John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum L Rev 612, 635 (1996) (noting that the APA's provisions on judicial review contain "faint expressions of legislative purpose" and "came from a tradition that used flexible common law methods to review administrative action").
73. Section 706 of the APA provides that "[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law [and] interpret constitutional and statutory provisions." 5 USC § 706. Some scholars have suggested that this provision in fact requires independent judicial review of interpretive judgments, thus precluding Chevron deference. See, e.g., Cass R. Sunstein, Law and Administration After Chevron, 90 Colum L Rev 2071, 2080-81, 2086 (1990); Farina, 89 Colum L Rev at 472-73 (cited in note 54). The issue never has troubled the Court unduly, nor do we think it should. As Sunstein himself concedes, the interpretive decisions that the court shall render under Section 706 may incorporate some measure of judicial deference; the courts, in other words, can decide the relevant legal question by holding that the agency is entitled to deference in some sphere and then policing its limits. See 90 Colum L Rev at 2081 n 46. The APA thus may well leave the level of deference to the courts, presumably to be decided according to common law methods, in the event that an organic statute says nothing about the matter. See John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum L Rev 612, 635 (1996) (noting that the APA's provisions on judicial review contain "faint expressions of legislative purpose" and "came from a tradition that used flexible common law methods to review administrative action").
74. Pre-Chevron law on judicial review was highly complex and variegated, but rarely did courts provide the equivalent of Chevron deference to agency interpretations, even when these interpretations arose in the course of rulemakings or adjudications having binding effect. For a cogent account of this doctrine, see Merrill, 101 Yale L J at 972-75 (cited in note 57).
75. See Merrill and Hickman, 89 Georgetown L J at 892 (cited in note 3).
76. See, e.g., NLRB v Curtin Matheson Scientific, Inc., 494 US 775, 786-87 (1990); Beth Israel Hospital v NLRB, 437 US 483, 499 (1978); NLRB v Hearst Publications, 322 US 111, 131 (1944).
77. We do not mean to claim here that the nature of a substantive delegation never implies a congressional intent as to Chevron deference. To take an extreme example that helps to make the point, a delegation to the Department of Labor to implement a workplace safety statute naturally will prevent the Department of Health and Human Services from gaining deference for its interpretations of that statute. For similar reasons, a very limited delegation of substantive authority to an agency may suggest a legislative decision as to the impropriety of granting Chevron deference. This is to say no more than what every Justice since Chevron has accepted: that an agency must "administer" a statute to obtain Chevron's benefits. See, e.g., Smiley, 517 US at 739; Chevron, 467 US at 865.
78. See text accompanying note 62 (noting that the Customs decision in Mead had binding legal effect, although lacking generality and procedural formality).
79. See text accompanying notes 102-04.
80. See 5 USC § 706.
81. 28 USC § 2639.
82. 467 US at 845.
83. See United States v Haggar Apparel Co., 526 US 380, 391 (1999) (discussing the relevance of 28 USC §§ 2638 and 2640(a) to the Chevron inquiry).
84. The Court's cavalier attitude toward the relevant statutory language also suggests a certain disingenuousness in describing the Chevron doctrine as a product of legislative decision. See text accompanying notes 85-87.
85. See, e.g., Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 Admin L J 187, 189-90, 202-03 (1992) (invoking constitutionally based understandings of institutional roles as a reason for the Court to distinguish in deference analysis between legislative rules and interpretive rules); Randolph J. May, Tug of Democracy: Justices Pull for America's Separation of Powers, Legal Times 51 (July 9, 2001) (applauding Mead on the ground that its limitation of Chevron comports with constitutional principles relating to government structure).
86. See, e.g., Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 Admin L J 187, 189-90, 202-03 (1992) (invoking constitutionally based understandings of institutional roles as a reason for the Court to distinguish in deference analysis between legislative rules and interpretive rules); Randolph J. May, Tug of Democracy: Justices Pull for America's Separation of Powers, Legal Times 51 (July 9, 2001) (applauding Mead on the ground that its limitation of Chevron comports with constitutional principles relating to government structure).
87. Professor Einer Elhauge offers a complex version of this position in Preference-Estimating Statutory Default Rules (forthcoming). He argues that Chevron doctrine (including Mead) both should and does allocate authority between courts and agencies in the way best designed to ensure that the resolution of statutory ambiguity will match "current governmental preferences," by which he means policies that Congress would enact into law.
88. See text accompanying notes 53-56.
89. See Elena Kagan, Presidential Administration, 114 Harv L Rev 2245, 2314-15, 2330 (2001); Terry M. Moe and William G. Howell, The Presidential Power of Unilateral Action, 15 J L Econ & Org 132, 143-48 (1999).
90. See Elena Kagan, Presidential Administration, 114 Harv L Rev 2245, 2314-15, 2330 (2001); Terry M. Moe and William G. Howell, The Presidential Power of Unilateral Action, 15 J L Econ & Org 132, 143-48 (1999).
91. See Mark Seidenfeld, Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 Tex L Rev 83, 136 (1994) (arguing that, as compared with stringent judicial review, Chevron "gives Congress greater control over the interpretive process").
92. See Herz, 6 Admin L J at 187 (cited in note 75) (stating that the "rivalry between the legislative and executive branches" should make Congress "prefer relatively stringent judicial review of agency interpretations"). That an agency is formally "independent," in the sense that the President cannot remove its head at will, may but need not affect the analysis; Presidents often have a good deal of actual control over independent agencies - sometimes more than they have over executive branch agencies - by virtue of their appointments and other powers. Judge Posner and Professor Landes make a different argument to the same ultimate effect in claiming that an enacting Congress may desire strict judicial review "in order to assure that the agency, in its eagerness to serve the current legislature, will not stray too far from the terms of the legislative 'deal'" that the agency is charged with implementing. See William M. Landes and Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J L & Econ 875, 888 (1975).
93. See Herz, 6 Admin L J at 187 (cited in note 75) (stating that the "rivalry between the legislative and executive branches" should make Congress "prefer relatively stringent judicial review of agency interpretations"). That an agency is formally "independent," in the sense that the President cannot remove its head at will, may but need not affect the analysis; Presidents often have a good deal of actual control over independent agencies - sometimes more than they have over executive branch agencies - by virtue of their appointments and other powers. Judge Posner and Professor Landes make a different argument to the same ultimate effect in claiming that an enacting Congress may desire strict judicial review "in order to assure that the agency, in its eagerness to serve the current legislature, will not stray too far from the terms of the legislative 'deal'" that the agency is charged with implementing. See William M. Landes and Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J L & Econ 875, 888 (1975).
94. Cass Sunstein has described the Court's task in much this way. In Sunstein's words: [I]f Congress has not made a clear decision one way or the other [on the question of deference], the choice among the alternatives will call for an assessment of which strategy is the most sensible one to attribute to Congress under the circumstances. This assessment is not a mechanical exercise of uncovering an actual legislative decision. It calls for a frankly value-laden judgment about comparative competence. Sunstein, 90 Colum L Rev at 2086 (cited in note 63).
95. 435 US 519 (1978).
96. 332 US 194 (1947) (Chenery II).
97. The APA's provision on judicial review, discussed in note 63, fairly invites, though does not require, such policy-based analysis. The very open-endedness of this provision suggests that, in the absence of an organic statute to the contrary, courts should set the level of deference in accordance with common law methods, which (as the examples in the text suggest) may include consideration of comparative institutional attributes and their relation to interpretation. Consider Manning, 96 Colum L Rev at 635 (cited in note 63) (noting that courts since the APA have "draw[n] upon their own sensibilities" about good government in giving content to that statute's judicial review provision).
98. Justice Breyer, in extrajudicial commentary, years ago made the identical point about judicial decisions defining the scope of review of agency interpretations: For the most part courts have used "legislative intent to delegate the law-interpreting function" as a kind of legal fiction. They have looked to practical features of the particular circumstance to decide whether it "makes sense," in terms of the need for fair and efficient administration of that statute in light of its substantive purpose, to imply a congressional intent that courts defer to the agency's interpretation. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin L Rev 363, 370 (1986); see text accompanying note 48 (noting Justice Scalia's recognition that the delegation rationale for Chevron is fictional).
99. 121 S Ct at 2172.
100. Id at 2174.
101. Id at 2176. Although Justice Souter wrote Mead, the part of the opinion most fully expounding this approach echoes Justice Breyer's scholarly writing. See Breyer, 38 Admin L Rev at 377 (cited in note 85) (arguing that Chevron "cannot reasonably apply to all questions of statutory interpretation . . . [because] the way in which [these] questions . . . arise are too many and too complex to rely upon a single simple rule to provide an answer").
102. See, e.g., 121 S Ct at 2173 ("That said, and as significant as notice-and-comment is in pointing to Chevron authority, the want of that procedure here does not decide the case, for we have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded.").
103. Id at 2178 (Scalia dissenting).
104. See, e.g., Hearst Publications, 322 US at 130.
105. See, e.g., Skidmore, 323 US at 137; Pittston Stevedoring Corp. v Dellaventura, 544 F2d 35, 49-50 (2d Cir 1976) (Friendly, J).
106. See, e.g, Packard Motor Car Co. v NLRB, 330 US 485, 491-93 (1947).
107. See, e.g., Pittston, 544 F2d at 50.
108. See, e.g., Packard, 330 US at 492; Skidmore, 323 US at 140.
109. See Scalia, 1989 Duke L J at 517 (cited in note 46) (praising Chevron on the ground that "Congress now knows that the ambiguities it creates . . . will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known").
110. See text accompanying notes 57-58.
111. Nor does the availability of Skidmore deference assist on this score. Even if Skidmore deference amounts to something more than a court saying "we will defer to the agency if we believe the agency is right," the application of Skidmore deference depends so much on context and circumstance - the kind of agency, the kind of issue, the kind of decision - as to preclude an agency from relying on it.
112. See Jerry L. Mashaw and David L. Harfst, Regulation and Legal Culture: The Case of Motor Vehicle Safety, 4 Yale J Reg 257, 315-16 (1987) (discussing the adverse consequences to traffic safety regulation arising from the uncertainties involved in hard look review).
113. See text accompanying note 38.
114. See text accompanying notes 39-40. This is not to say that generality will ensure Chevron deference in the absence of formal procedures; the Court's slighting reference to interpretive rules - that they "enjoy no Chevron status as a class," 121 S Ct at 2174 - makes clear that generality alone often will not suffice. The point here is only that Mead, in addition to favoring formality over informality in procedures, expresses a preference for general over particular decision-making forms.
115. See 5 USC § 553(a), (b)(A), (b)(B).
116. See id at § 554(a); compare Seacoast Anti-Pollution League v Costle, 572 F2d 872 (1st Cir 1978) (requiring formality when another statute requires a hearing) with Chemical Waste Management, Inc. v EPA, 873 F2d 1477 (DC Cir 1989) (requiring formality only when another statute requires an "on-the-record" hearing). 104 332 US at 201.
117. See, e.g., United States Telephone Association v FCC, 28 F3d 1232 (DC Cir 1994); Community Nutrition Institute v Young, 818 F2d 943 (DC Cir 1987).
118. We do not mean to deny here that agencies happily avail themselves of exceptions to formal procedural requirements, and indeed that they actively look for opportunities to do so. See Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L J 1385, 1393-96 (1992). But if the Court's aim in Mead is to deter these perfectly legal avoidance practices, then the rationale of the decision is, in the terminology we used above, more preferential than prophylactic. We address this reasoning in the next few paragraphs.
119. 5 USC § 553(b)(B).
120. See 5 USC § 553(b)(A) (using the term "interpretative" rules). As Judge Posner explained in Hoctor v United States Department of Agriculture, 82 F3d 165 (7th Cir 1996), "the agency would be stymied in its enforcement duties if every time it brought a case on a new theory it had to pause for a bout, possibly lasting several years, of notice and comment rulemaking"; given that this is so, and the true alternative to an interpretive rule is therefore often not a notice-and-comment rule but a simple enforcement action preceded by no rule at all, the agency does regulated interests "a favor if it announces the interpretation in advance of enforcement." Id at 167, 170.
121. See, e.g., Jerry L. Mashaw and David L. Harfst, The Struggle for Auto Safety (Harvard, 1990); McGarity (cited in note 106); Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 Admin L Rev 59 (1995); Paul R. Verkuil, Rulemaking Ossification - a Modest Proposal, 47 Admin L Rev 453 (1995).
122. See, e.g., Jerry L. Mashaw and David L. Harfst, The Struggle for Auto Safety (Harvard, 1990); McGarity (cited in note 106); Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 Admin L Rev 59 (1995); Paul R. Verkuil, Rulemaking Ossification - a Modest Proposal, 47 Admin L Rev 453 (1995).
123. See, e.g., Jerry L. Mashaw and David L. Harfst, The Struggle for Auto Safety (Harvard, 1990); McGarity (cited in note 106); Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 Admin L Rev 59 (1995); Paul R. Verkuil, Rulemaking Ossification - a Modest Proposal, 47 Admin L Rev 453 (1995).
124. See, e.g., Horsehead Resource Development Co., Inc. v Browner, 16 F3d 1246, 1267-69 (DC Cir 1994); Solite Corp. v EPA, 952 F2d 473, 484 (DC Cir 1991); Portland Cement Association v Ruckelshaus, 486 F2d 375, 394 (DC Cir 1973).
125. We do not mean to say that agencies always will adopt this course when they have a choice between formal and informal procedures; given the cost of formal procedures, they may do so only on the margin. Cf. text following note 165 (discussing the impact of our alternative deference regime on agency decision making). We mean only to say that some shift will occur and that it runs in the wrong direction.
126. Professor E. Donald Elliott, a former General Counsel of the EPA, has written: No administrator in Washington turns to full-scale notice-and-comment rulemaking when she is genuinely interested in obtaining input from interested parties. Notice-and-comment rulemaking is to public participation as Japanese Kabuki theater is to human passions - a highly stylized process for displaying in a formal way the essence of something which in real life takes place in other venues. Re-Inventing Rulemaking, 41 Duke L J 1490, 1492 (1992).
127. For discussion of these disparate understandings of the administrative process, see Cass R. Sunstein, Interest Groups in American Public Law, 38 Stan L Rev 29, 31-35 (1985).
128. See Theda Skocpol, Advocates Without Members: The Recent Transformation of American Civic Life, in Theda Skocpol and Morris P. Fiorina, eds, Civic Engagement in American Democracy 461, 498-504 (Brookings, 1999).
129. 121 S Ct at 2174.
130. See Richard J. Pierce, Jr., Two Problems in Administrative Law: Political Polarity on the District of Columbia Circuit and Judicial Deterrence of Agency Rulemaking, 1988 Duke L J 300, 308 ("Rulemaking yields higher-quality policy decisions than adjudication . . . because it encourages the agency to focus on the broad effects of its policy rather than the often idiosyncratic adjudicative facts of a specific dispute.").
131. Thomas Merrill and Kristin Hickman appear to take this view in support of their claim, essentially adopted in Mead as to informal (though not formal) adjudication, that an agency action must control more than the immediate case to qualify for Chevron deference. See note 62. On their reasoning, "[i]t would be extremely odd to give [adjudicative] decisions greater legal force in court than they have within the agency itself." See Merrill and Hickman, 89 Georgetown L J at 908 (cited in note 3).
132. 332 US at 203.
133. Id at 2174.
134. Perhaps alternatively (if the Tariff Act permitted), the Customs Service could amend its procedural rules to provide for formal adjudications in tariff cases and thereby obtain Chevron deference. But because the agency probably would have to adopt this procedure across the board, this "option" seems a non-starter.
135. Several administrative law scholars have focused on the internal functioning of agencies and particularly on the diverse perspectives that diverse actors within the bureaucracy bring to bear on policymaking. See Jerry Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (Yale, 1983); Thomas O. McGarity, Reinventing Rationality: The Role of Regulatory Analysis in the Federal Bureaucracy (Cambridge, 1991). But none, so far as we know, has tied this inquiry to the Chevron question or to other doctrines of judicial review.
136. Several administrative law scholars have focused on the internal functioning of agencies and particularly on the diverse perspectives that diverse actors within the bureaucracy bring to bear on policymaking. See Jerry Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (Yale, 1983); Thomas O. McGarity, Reinventing Rationality: The Role of Regulatory Analysis in the Federal Bureaucracy (Cambridge, 1991). But none, so far as we know, has tied this inquiry to the Chevron question or to other doctrines of judicial review.
137. There are a few exceptions. Administrative law has shown awareness of this issue in considering the appropriate structure for handling adjudicatory proceedings. In this area, courts long have debated the relative benefits of insulating adjudicators from or, alternatively, subjecting them to the control of higher-ranking policymakers. See Ronald A. Cass, Allocation of Authority Within Bureaucracies: Empirical Evidence and Normative Analysis, 66 BU L Rev 1, 5-9, 29-36 (1986) (reviewing the debate). In addition, courts occasionally have considered the level of decision making within an agency in the context of deciding whether an agency action is sufficiently final to require the use of notice-and-comment procedures. See Natl Automatic Laundry if Cleaning Council v Schultz, 443 F2d 689 (DC Cir 1971).
138. Certain legal doctrines outside the area of administrative law recognize the relevance of how institutions structure their internal decision making and, more particularly, whether a given decision emanates from a high-or a low-level official. The law of municipal liability under Section 1983, for example, depends in part on whether a high policymaker made the decision for which the plaintiff seeks damages. See City of St. Louis v Praprotnik, 485 US 112 (1988); see also Peter H. Schuck, Municipal Liability Under Section 1983: Some Lessons from Tort Law and Organization Theory, 77 Georgetown L J 1753, 1772-79 (1989) (criticizing this standard on the ground that much municipal policymaking occurs at the street level).
139. Two scholars recently have contrasted the questions of institutional choice (as between the courts and Congress) and institutional design (within Congress itself) in discussing congressional interpretation of the Constitution. See Elizabeth Garrett and Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 Duke L J 1277 (2001). Their analysis does not, as ours does in the administrative context, make the former turn on the latter.
140. A more dramatic version of this approach would save Chevron deference for cases in which the President has assumed some responsibility for an administrative decision. One of us has suggested just such a revision of Chevron doctrine, implemented primarily through a distinction between executive branch and independent agencies. See Kagan, 114 Harv L Rev at 2372-80 (cited in note 78). The normative case for this change has distinct similarities to the one we lay out here, but this greater revision depends on contested understandings of the role of the President within administration that do not enter into the analysis offered in this article.
141. Our approach has affinities to several constitutional decisions that suggest a link between the courts' posture toward a governmental decision and the identity of the institution responsible for that decision. See Laurence H. Tribe, American Constitutional Law 1677-87 (Foundation, 2d ed 1988) (discussing these decisions). In Hampton v Mow Sun Wong, 426 US 88 (1976), for example, the Court invalidated on equal protection grounds the Civil Service Commission's ban on the federal employment of aliens, but suggested that Congress or the President might impose such a ban consistently with the Constitution. See also Regents of the University of California v Bakke, 438 US 265 (1978) (Powell concurring) (rejecting an affirmative action policy in part because the state's Board of Regents, rather than the legislature, had adopted it). These decisions effectively prevent a legislature from delegating certain kinds of decisions to certain kinds of institutions. Our proposed nondelegation doctrine differs in looking within an institution and making doctrinal distinctions on the basis of the decisional structure that the institution has adopted prior to taking an action.
142. In the rare cases when a statute names only an office, our standard uses, as noted in the final part of this article, the head of that office as the relevant delegatee. See text accompanying notes 203-04.
143. If a statute authorizes the named delegatee to delegate the decision making to another specifically named actor within the agency - as opposed to any other officer or employee -the second named actor likewise should count as a statutory delegatee.
144. See, e.g., Touby v United States, 500 US 160, 169 (1991) (upholding the Attorney General's delegation of power to establish classifications of controlled substances pursuant to a statute authorizing her to delegate this power "to any officer or employee of the Department of Justice"); Cass, 66 BU L Rev at 3-7 (cited in note 122) (discussing statutory provisions that allow agency heads to deny review of adjudicative decisions). An occasional statute will make certain functions nondelegable by the designated official. For example, the statutory provision authorizing the Attorney General to approve wiretaps specifically limits her delegation power. See United States v Giordano, 416 US 505 (1974). Similarly, statutes that provide for formal adjudication may grant adversely affected parties the right to appeal all the way to the Secretary before a decision may take effect against them.
145. See Cass, 66 BU L Rev at 3-7 (cited in note 122). Assuming that a party invokes this right, a statutory provision of this kind effectively prohibits delegation of the decision. When such a nondelegation provision is in effect, final action almost always will merit Chevron deference because (by statutory command) the delegatee herself will have issued the decision. For a qualification to this statement, deriving from the need not only to issue formally but to assess the decision in a meaningful way, see text accompanying notes 132-33.
146. See Strauss, 41 Duke L J at 1467 (cited in note 11) (contrasting legislative rules, which are "invariably an act of the particular individual or body to whom that authority has been delegated," with other interpretive rulings, which are "typically effected by agency staff without participation at the agency's head").
147. See text accompanying notes 57-70.
148. See text accompanying notes 173-82.
149. We contrast these "central" advisors to advisors located within a given substantive unit of the agency. So, for example, if a statute assigned the Secretary of Health and Human Services the power to issue rulings concerning welfare benefits, she would not receive deference for a ruling reviewed only by the assistant secretary of the office responsible for formulating welfare policy.
150. The Court has recognized, in the context of enforcing the principle that "the one who decides must hear," that agency heads necessarily will rely on staff-level assistance. See Morgan v United States, 298 US 468, 481 (1936) (Morgan I). In Morgan, the Court noted that the requirement that a departmental head "hear" the evidence in a case before rendering a decision did not preclude him from relying on reviews and summaries that his staff had compiled. See id at 481-82. As Judge Friendly explained in a later, similar case, a prohibition on such staff-level input would beggar reality: With the enormous increase in delegation of lawmaking power which Congress has been obliged to make to agencies, both independent and in the executive branch, and in the complexity of life, government would become impossible if courts were to insist on anything of the sort. It would suffice under the circumstances [which involved a record comprised of tens of thousands of documents] that [the Commissioner] considered the summaries of the objections and of the answers contained in the elaborate preambles and conferred with his staff about them. National Nutritional Foods Association v FDA, 491 F2d 1141, 1146 (2d Cir 1974).
151. See text accompanying note 151.
152. Whether to gain Chevron deference or to achieve some other objective, agencies can (and even now do) structure their internal processes in a variety of ways to select matters appropriate for the statutory delegatee to decide herself prior to the issuance of a ruling. The agency can leave it to lower-level officials to make case-by-case determinations as to which matters should go to the top. This method places control over the decisional flow in the hands of employees with intimate knowledge of an issue, but also with a potential incentive to avoid scrutiny and reversal. Alternatively (or in some combination), the agency can establish categorical rules or presumptions respecting which decisions to handle at the delegatee's level. This method enables the delegatee to set her own priorities, independent of the potentially conflicting judgments of lower-level employees, but risks substantial imprecision (both overinclusion and underinclusion) in the selection of cases for high-level resolution. Finally, the delegatee herself may become aware of and reach out for matters otherwise ensconced in the bowels of the bureaucracy. The appropriate choice among (or mix of) these approaches depends on context and circumstance, which the delegatee can best evaluate.
153. We discuss further the normative basis for this position at text accompanying notes 197-202.
154. See text accompanying notes 42, 75-87.
155. See Industrial union Department, AFL-CIO v American Petroleum Institute, 448 US 607, 685 (1980) (Benzene Case) (Rehnquist concurring) (stating that the congressional nondelegation doctrine "ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our government most responsive to the popular will"); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 133 (Harvard, 1980) ("That legislators often find it convenient to escape accountability is precisely the reason for a nondelegation doctrine.").
156. See Cass R. Sunstein, Is the Clean Air Act Unconstitutional? 98 Mich L Rev 303, 337 (1999) (noting that the congressional nondelegation doctrine fosters "rule of law" values, in part by "cabining the discretionary authority of enforcement officials, who might otherwise act abusively or capriciously"). Kenneth Davis originated this strand of justification for the congressional nondelegation doctrine. See Kenneth Culp Davis, A New Approach to Delegation, 36 U Chi L Rev 713 (1969). A nondelegation doctrine premised on rule-of-law values need not require Congress to establish limits on agency action; indeed, Davis suggested that agencies themselves could establish such limits. See id at 729. The D.C. Circuit recently advocated a similar approach, but the Supreme Court reversed, pointedly noting that an agency's own adoption of disciplining mechanisms could not "cure an unlawful delegation." Whitman v American Trucking Associations, Inc., 531 US 457, 472 (2001). The Court thus refused to sever the accountability and rule-of-law rationales for the nondelegation doctrine.
157. See Cass R. Sunstein, Is the Clean Air Act Unconstitutional? 98 Mich L Rev 303, 337 (1999) (noting that the congressional nondelegation doctrine fosters "rule of law" values, in part by "cabining the discretionary authority of enforcement officials, who might otherwise act abusively or capriciously"). Kenneth Davis originated this strand of justification for the congressional nondelegation doctrine. See Kenneth Culp Davis, A New Approach to Delegation, 36 U Chi L Rev 713 (1969). A nondelegation doctrine premised on rule-of-law values need not require Congress to establish limits on agency action; indeed, Davis suggested that agencies themselves could establish such limits. See id at 729. The D.C. Circuit recently advocated a similar approach, but the Supreme Court reversed, pointedly noting that an agency's own adoption of disciplining mechanisms could not "cure an unlawful delegation." Whitman v American Trucking Associations, Inc., 531 US 457, 472 (2001). The Court thus refused to sever the accountability and rule-of-law rationales for the nondelegation doctrine.
158. Some scholars might claim that our approach undermines, rather than runs parallel to, the congressional nondelegation doctrine by demanding that courts grant Chevron deference in some circumstances. See Farina, 89 Colum L Rev at 487-88 (cited in note 54) (arguing that Chevron and the congressional nondelegation doctrine work at cross-purposes). But there is no tension, much less conflict, between Chevron and the congressional nondelegation doctrine. Under the nondelegation doctrine, Congress may set the terms of a delegation so long as those terms provide an "intelligible principle." And under Chevron, agencies must conform their interpretations to the terms that Congress has established. Chevron thus does not enhance Congress's constitutional power to delegate authority, but only provides the background principles for construing delegations that conform to constitutional requirements.
159. See 467 US at 865-66 (focusing on an agency's link to the President).
160. See James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It 59-62 (Basic, 1989) (discussing the substantial influence that independent professional norms have on low-level agency actors).
161. Benzene Case, 448 US at 685.
162. See Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv L Rev 1669, 1684-87 (1975) (discussing the causes, scope, and limits of interest group capture of agency personnel).
163. The Court has posited that the Appointments Clause establishes this mode of selection as the default rule for the appointment of all "officers of the United States" precisely to promote values of political accountability. See Freytag v Commissioner, 501 US 868, 883-84 (1991).
164. Kagan, 114 Harv L Rev at 2332 (cited in note 78); see Charles Fried, Order and Law: Arguing the Reagan Revolution - a Firsthand Account 153 (Simon & Schuster, 1991) (arguing that "[t]he lines of responsibility [within the administrative state] should be stark and clear, so that the exercise of power can be comprehensible, transparent to the gaze of the citizens subject to it").
165. Kagan, 114 Harv L Rev at 2332 (cited in note 78); see Charles Fried, Order and Law: Arguing the Reagan Revolution - a Firsthand Account 153 (Simon & Schuster, 1991) (arguing that "[t]he lines of responsibility [within the administrative state] should be stark and clear, so that the exercise of power can be comprehensible, transparent to the gaze of the citizens subject to it").
166. Peter L. Strauss et al, Gellhorn & Byse's Administrative Law: Cases and Comments 891 (Foundation, 8th ed 1987) (quoting 1978 GAO survey).
167. See McGarity, Reinventing Rationality at 183 (cited in note 121) (&[T]o the extent that upper-level decision makers carefully monitor the decision making process, it helps ensure that lower-level staff continue to adhere to the policy preferences of politically-appointed decision makers, rather than following their own hidden agenda.&); Ronald A. Cass, Agency Review of Administrative Law Judges' Decisions, in Administrative Law Conference of the United States, Reports and Recommendations 115, 133 (1983) (&[A]bsent some form of review, it is difficult to reward conforming behavior or punish behavior that departs from [the agency head's] wishes, the stuff incentives are made of.&).
168. See McGarity, Reinventing Rationality at 183 (cited in note 121) (&[T]o the extent that upper-level decision makers carefully monitor the decision making process, it helps ensure that lower-level staff continue to adhere to the policy preferences of politically-appointed decision makers, rather than following their own hidden agenda.&); Ronald A. Cass, Agency Review of Administrative Law Judges' Decisions, in Administrative Law Conference of the United States, Reports and Recommendations 115, 133 (1983) (&[A]bsent some form of review, it is difficult to reward conforming behavior or punish behavior that departs from [the agency head's] wishes, the stuff incentives are made of.&).
169. This point holds even though a high-level official's intervention may cause shifts in agency policy. None of what we have said is meant to suggest that a statutory delegatee's involvement in decision making necessarily will support the status quo. To the contrary, such an official may have less compunction than a lower-level employee about breaking with past practice or setting out in an uncharted direction. See Wilson, Bureaucracy at 230 (cited in note 143) (discussing the unique role that high-level actors can play in altering an agency's course). A deference rule that encourages high-level agency decision making thus may lead to aggressive rather than to cautious interpretations. But a rule permitting altered policy is not equivalent to a rule permitting aberrant or ad hoc policy. If confined to high-level decision making, Chevron would function as the first kind of rule, but not as the second. That result, allowing the transformation but not the subversion of agency policy, is correct. The goal here, reflecting the value of disciplined consideration evident in Chevron, Mead, and the congressional nondelegation doctrine, is to prevent arbitrariness and unruliness, not to arrest all capacity for change.
170. See text accompanying note 134.
171. See Sunstein, 98 Mich L Rev at 330-35 (cited in note 140) (chronicling the rise and fall of the doctrine).
172. See American Trucking, 531 US 457.
173. See Sunstein, 98 Mich L Rev at 337-39 (cited in note 140) (summarizing the arguments against the doctrine).
174. See id at 338-39.
175. See id. Even proponents of a revived nondelegation doctrine appear to concede that members of Congress could respond to its demands only by increasing their reliance on legislative committees. See Ely, Democracy and Distrust at 133 (cited in note 139); cf. David Epstein and Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers 237-38 (Cambridge, 1999) (discussing the effects of a revived nondelegation doctrine on Congress's decision-making processes). Opponents of the doctrine might find yet a further reason for objection in this "cure," given the special interest orientation of many congressional committees. Consider Kenneth A. Shepsle, The Giant Jigsaw Puzzle: Democrtic Committee Assignments in the Modern House 231-34 (Chicago, 1978) (discussing the factional leanings of many congressional committees).
176. See id. Even proponents of a revived nondelegation doctrine appear to concede that members of Congress could respond to its demands only by increasing their reliance on legislative committees. See Ely, Democracy and Distrust at 133 (cited in note 139); cf. David Epstein and Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers 237-38 (Cambridge, 1999) (discussing the effects of a revived nondelegation doctrine on Congress's decision-making processes). Opponents of the doctrine might find yet a further reason for objection in this "cure," given the special interest orientation of many congressional committees. Consider Kenneth A. Shepsle, The Giant Jigsaw Puzzle: Democrtic Committee Assignments in the Modern House 231-34 (Chicago, 1978) (discussing the factional leanings of many congressional committees).
177. See id. Even proponents of a revived nondelegation doctrine appear to concede that members of Congress could respond to its demands only by increasing their reliance on legislative committees. See Ely, Democracy and Distrust at 133 (cited in note 139); cf. David Epstein and Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers 237-38 (Cambridge, 1999) (discussing the effects of a revived nondelegation doctrine on Congress's decision-making processes). Opponents of the doctrine might find yet a further reason for objection in this "cure," given the special interest orientation of many congressional committees. Consider Kenneth A. Shepsle, The Giant Jigsaw Puzzle: Democrtic Committee Assignments in the Modern House 231-34 (Chicago, 1978) (discussing the factional leanings of many congressional committees).
178. See McGarity, Reinventing Rationality at 119 (cited in note 121) (discussing the disadvantages associated with upper-level officials' monitoring the rulemaking process).
179. We discuss this issue further at text accompanying notes 173-74.
180. Congress of course could not satisfy a strong nondelegation doctrine through the use of a legislative veto mechanism; indeed, Congress cannot any longer adopt this mechanism for any purpose. See INS v Chadha, 462 US 919 (1983).
181. Justice (then Judge) Breyer proposed in the wake of Chadha that Congress experiment with a scheme of this kind, incorporating the use of fast-track procedures to facilitate the "confirmation" of agency policy. See Stephen Breyer, The Legislative Veto After Chadha, 72 Georgetown L J 785, 788-89 (1984). That Congress never considered seriously the idea suggests much about its feasibility.
182. See McGarity, Reinventing Rationality at 31, 76-77, 120 (cited in note 121) (describing the variety of processes by which high-level officials and their staffs communicate policy preferences as to particular matters to lower-level employees).
183. See Wilson, Bureaucracy at 62 (cited in note 143) (noting the way professional norms can cause "blind spots" within agencies); Bruce Ackerman, The New Separation of Powers, 113 Harv L Rev 633, 701 (2000) ("Bureaucracies are intellectually conservative creatures - full of old-timers who have invested heavily in obsolete conventional wisdom.").
184. See Wilson, Bureaucracy at 62 (cited in note 143) (noting the way professional norms can cause "blind spots" within agencies); Bruce Ackerman, The New Separation of Powers, 113 Harv L Rev 633, 701 (2000) ("Bureaucracies are intellectually conservative creatures -full of old-timers who have invested heavily in obsolete conventional wisdom.").
185. See McGarity, Reinventing Rationality at 118-21 (cited in note 121) (urging agencies to establish decision-making structures that have this consequence); consider Michael C. Dorf and Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum L Rev 267, 314-23 (1998) (advocating a complex relationship between central and local decision makers, though in a way that focuses less than we do on the actual participation of central officials in decisions).
186. See McGarity, Reinventing Rationality at 118-21 (cited in note 121) (urging agencies to establish decision-making structures that have this consequence); consider Michael C. Dorf and Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum L Rev 267, 314-23 (1998) (advocating a complex relationship between central and local decision makers, though in a way that focuses less than we do on the actual participation of central officials in decisions).
187. See McGarity, Reinventing Rationality at 179 (cited in note 121) ("Because institutions lack a centralized nervous system steered by a single brain, institutional decision making tends to be very different from individual decision making. Most regulatory decisions are the products of numerous encounters between the various institutional entities that have roles to play in the decision making process, and they therefore represent a synthesis of many views."). For a description of how low-level actors may constrain the choice-set of a high-level agency actor, see id at 61 (discussing decision making in the EPA in the 1980s).
188. Indeed, by encouraging the involvement of high-level officials in decision making, our standard may enhance their responsiveness to policy proposals initiated within the ranks of the bureaucracy. See Peter L. Strauss, Rules, Adjudications, and Other Sources of Law in an Executive Department: Reflections on the Interior Department's Administration of the Mining Law, 74 Colum L Rev 1231, 1247 (1974) (noting the tendency of high-level agency officials to fail to respond to policy suggestions from below).
189. See Mistretta v United States, 488 US 361, 415-22 (1989) (Scalia dissenting) (arguing that courts cannot distinguish between permissible and impermissible delegations); Stewart, 88 Harv L Rev at 1696-97 (cited in note 145) (claiming that "[s]uch judgments are necessarily quite subjective, . . . almost inevitably appear partisan, and might often be so").
190. National Broadcasting Company v United States, 319 US 190 (1943) (upholding the Communications Act on the ground that its "public convenience, interest or necessity" standard provides an "intelligible principle" for the FCC to enforce); see Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv L Rev 1276, 1303 (1984) (arguing that all delegations both do and do not satisfy the "intelligible principle" test).
191. 5 USC § 557(c).
192. 12 F3d 401 (3d Cir 1993).
193. Id at 404.
194. Id at 406.
195. Courts traditionally have expressed reluctance, for the reasons suggested in the text, to conduct a factual inquiry into the way agency officials reach their decisions. See, e.g., Morgan v United States, 304 US 1, 18 (1938) (Morgan II).
196. In addition, the delegatee or her legal staff may resist evasion of the requirement of meaningful review out of a felt obligation to give effect to the courts' pronouncements. Congress, to be sure, has failed to demonstrate any analogous scruples when it comes to delegations of authority. But in the congressional context, the Court more often has denied the existence of a robust nondelegation doctrine than recognized that doctrine but left its enforcement to Congress. Perhaps more important, both the greater ease of compliance and the lesser effect of noncompliance with a nondelegation principle in the agency context may enhance the effect of a simple judicial pronouncement.
197. See OSHA Advisory Opinion, Re: Application of OSHA Rules to People Who Work at Home (Nov 15, 1999), available online at 〈http://www.techlawjournal.com〉.
198. For accounts of the controversy, see Kent Hoover, OSHA Criticized After Home-Office Debacle, Denver Bus J 1 (Feb 4, 2000); Frank Swoboda, Labor Chief Retreats on Home Offices; OSHA Position Drew Criticism, Wash Post A1 (Jan 6, 2000).
199. For accounts of the controversy, see Kent Hoover, OSHA Criticized After Home-Office Debacle, Denver Bus J 1 (Feb 4, 2000); Frank Swoboda, Labor Chief Retreats on Home Offices; OSHA Position Drew Criticism, Wash Post A1 (Jan 6, 2000).
200. Richard E. Fairfax, Director of the Directorate of Compliance Programs for OSHA, had signed the letter. See OSHA Advisory Opinion (cited in note 174).
201. See Swoboda (cited in note 175).
202. See Hoover (cited in note 175) (quoting Administrator Jeffress).
203. Id (quoting Representative Schaffer).
204. A similar flap, complete with the same downward finger-pointing, occurred in the first months of the Bush Administration when the website of the Department of Agriculture highlighted a new policy to abandon a contract provision requiring salmonella testing of ground beef served in federal school lunch programs. The Secretary withdrew the policy, explaining that a "low-level employee" had issued it without seeking review from her office. See Marc Kaufman and Amy Goldstein, USDA Shifts Stance on Testing of School Beef; Agency to Continue Salmonella Screen, Wash Post A1 (April 6, 2001).
205. See text following note 165.
206. For discussion of this point see McGarity, Reinventing Regulation at 160-61, 185-86 (cited in note 121); Wilson, Bureaucracy at 105-07 (cited in note 143).
207. For discussion of this point see McGarity, Reinventing Regulation at 160-61, 185-86 (cited in note 121); Wilson, Bureaucracy at 105-07 (cited in note 143).
208. See text accompanying note 172.
209. 470 US 821 (1985).
210. Id at 833 n 4.
211. In handling these claims of systematic evasion, courts should adopt a high threshold for permitting discovery, consistent with their traditional (and appropriate) reluctance to require agencies to reveal their internal deliberative processes. See Morgan v United States, 313 US 409 (1941) (Morgan IV). But for our standard to have bite, courts must permit inquiries into these processes when the challenger of agency action has made a strong preliminary showing. Consider National Nutritional Food Association v FDA, 491 F2d 1141, 1145 (2d Cir 1974) (noting that courts after Morgan IV have required "strong preliminary showings of bad faith . . . before the taking of testimony has been permitted with regard to internal agency deliberations."). For example, evidence that a statutory delegatee had signed hundreds of opinion letters on many matters within a short period of time might justify a court in permitting discovery into the issue of high-level review. More direct evidence of rubberstamping, such as that obtainable form news reports or Freedom of Information Act requests, also might suffice.
212. The above analysis suggests why ours is only a plea to the courts to reshape the Chevron inquiry to respond to internal delegations and not a plea to Congress to limit the power of agency heads (and other delegatees) to subdelegate. Congress no doubt can promote responsible decision making by prohibiting subdelegation in a few select areas. But for Congress to do much more risks defeating its objects. If the delegatee takes a broad nondelegation command seriously, overcentralization indeed will result, as the delegatee does too much - and because too much, also too little (of import). If, alternatively, as seems likely, the delegatee recognizes this danger, she will develop means of perfunctory compliance, confident that the political risks of doing so are less than those of ignoring her other responsibilities. It is when the delegatee retains the core power to subdelegate that nondelegation will reflect a conscious, considered judgment about the decision-making process and will entail her meaningful participation in that process. It is that judgment and that participation which is integral to any sound scheme of promoting responsibility in agency decision making.
213. 121 S Ct at 2174; see id at 2175, 2177 n 19.
214. Id at 2177 n 19.
215. Id at 2174.
216. Id at 2175.
217. See 121 S Ct at 2172-73.
218. See id at 2189 (Scalia dissenting).
219. Id.
220. Id.
221. Id at 2187; see text accompanying note 41.
222. Of course, if a statutory delegatee reverses a decision after it issues, the new decision would receive deference under our standard. The reasons for withholding deference when a statutory delegatee ratifies a decision post hoc do not apply when she reverses it.
223. See Donald C. Langevoort, Organized Illusions: A Behavioral Theory of Why Corporations Mislead Stock Market Investors (and Cause Other Social Harms), 146 U Pa L Rev 101, 135 (1997) (noting strong biases against revisions in corporate behavior); Susan T. Fiske and Shelley E. Taylor, Social Cognition 149-51 (McGraw-Hill, 2d ed 1991) (arguing that "[w]ell-developed schemas generally resist change"); Richard E. Nisbett and Lee Ross, Human Inference: Strategies and Shortcomings of Social Judgment 167 (Prentice-Hall, 1980) (stating similar findings).
224. See Donald C. Langevoort, Organized Illusions: A Behavioral Theory of Why Corporations Mislead Stock Market Investors (and Cause Other Social Harms), 146 U Pa L Rev 101, 135 (1997) (noting strong biases against revisions in corporate behavior); Susan T. Fiske and Shelley E. Taylor, Social Cognition 149-51 (McGraw-Hill, 2d ed 1991) (arguing that "[w]ell-developed schemas generally resist change"); Richard E. Nisbett and Lee Ross, Human Inference: Strategies and Shortcomings of Social Judgment 167 (Prentice-Hall, 1980) (stating similar findings).
225. See Donald C. Langevoort, Organized Illusions: A Behavioral Theory of Why Corporations Mislead Stock Market Investors (and Cause Other Social Harms), 146 U Pa L Rev 101, 135 (1997) (noting strong biases against revisions in corporate behavior); Susan T. Fiske and Shelley E. Taylor, Social Cognition 149-51 (McGraw-Hill, 2d ed 1991) (arguing that "[w]ell-developed schemas generally resist change"); Richard E. Nisbett and Lee Ross, Human Inference: Strategies and Shortcomings of Social Judgment 167 (Prentice-Hall, 1980) (stating similar findings).
226. See National Family Planning and Reproductive Health Association, Inc. v Sullivan, 979 F2d 227 (DC Cir 1992) (prohibiting an agency from revising a notice-and-comment regulation through an interpretive rule issued without notice and comment). This requirement almost surely obtains even if the agency provided more procedural formality than necessary in the first instance.
227. See Good Samaritan Hospital v Shalala, 508 US 402, 417 (1993) (stating that "the consistency of an agency's position is a factor in assessing the weight that position is due," but ultimately deferring to an agency's changed interpretation); Pauley v Bethenergy Mines, Inc., 501 US 680, 698 (1991) (stating that the "case for judicial deference is less compelling with respect to agency decisions that are inconsistent with previously held views," but finding that the interpretation at issue was not so inconsistent); Bowen v Georgetown U. Hospital, 488 US 204, 212-13 (1988) (declining to give deference on the alternative ground that the interpretation at issue was "contrary to the narrow view of that provision advocated in past cases"). But see Rust v Sullivan, 500 US 173, 186-87 (1991) (reading Chevron to hold that a revised interpretation deserves deference and sustaining agency action on this ground).
228. Courts usually refuse to sustain agency action on grounds that the agency offers for the first time in litigation. See NLRB v Yeshiva U., 444 US 672, 685 n 22 (1980) ("We do not, of course, substitute counsel's post hoc rationale for the reasoning supplied by the Board itself."). Agency counsel, however, routinely massage agency decisions to strengthen their prospects in litigation.
229. Justice Scalia's standard, by conferring deference on essentially any agency interpretation that arrives in court, does avoid one potential disadvantage of our approach. Under current law, when a court interprets statutory language without deference to an agency, the judicial decision forever locks in the agency, depriving it of the ability to claim deference for a different interpretation in the future. See Neal v United States, 516 US 284 (1996); Lechmere, Inc. v NLRB, 502 US 527 (1992). This doctrine, which we think may be misguided, means that the agency may have only one shot on a given issue to satisfy the conditions for judicial deference. The agency, however, retains the ability to factor in this danger when deciding whether the statutory delegatee herself should issue an interpretation. 203 See 19 USC § 1500; text accompanying note 23.
230. See 19 CFR § 177.9.
231. See text following note 171.
232. See text following note 165.
233. See text accompanying notes 173-87.
234. This result would conflict with current doctrine. See INS v Aguirre-Aguirre, 526 US 415 (1999) (conferring Chevron deference on a decision of the Board of Immigration Appeals). Similarly, the proposed approach would decline to give deference to a formal rule that a subordinate of the statutory delegatee adopts. The Court appears never to have addressed this issue. Consider United States v Touby, 500 US 160 (1991) (upholding a controlled substance classification that the Administrator of the Drug Enforcement Agency issued pursuant to a delegation from the Attorney General, but not addressing the Chevron question).
235. See 121 S Ct at 2173 (affirming, but without explanation, NationsBank of NC, NA v Variable Annuity Life Insurance Co., 513 US 251 (1995)).
236. See text accompanying notes 14-16.
237. An agency, for example, violates section 553 of the APA by giving final binding effect to a general policy statement adopted without notice and comment. Regardless whether a statutory delegatee has adopted the policy statement, this prohibition applies. So if an agency applies a policy statement to a party without conducting a separate enforcement proceeding, in which the party has an opportunity to contest the position taken in the statement, the court should invalidate the action without considering Chevron. 212 See text accompanying notes 14-16, 102-04.