Judicial deference and the credibility of agency commitments

Vanderbilt Law Review

Volumn 60, Issue 4, 2007, Pages 1021-1076

  Masur, Jonathan ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 38149061917     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (37)

1. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
2. 21 U.S.C. §§ 301-99 (2007).
3. See, e.g., Kenneth A. Bamberger, Provisional Precedent: Protecting Flexibility in Administrative Policymaking, 77 N.Y.U. L. REV. 1272, 1302 (2002);
4. Yoav Dotan, Making Consistency Consistent, 57 ADMIN. L. REV. 995, 1004-05 (2005);
5. Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 GEO. L.J. 833, 912 (2001);
6. Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 GEO. L.J. 2225, 2232 (1997);
7. Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2088-89 (1990).
8. See, e.g., State Farm, 463 U.S. at 34, 42.
9. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
10. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005).
11. See Sunstein, supra note 3, at 2088.
12. See sources cited supra note 3.
13. See State Farm, 463 U.S. at 44-45, 57.
14. See Rust v. Sullivan, 500 U.S. 173, 186-87 (1991); Chevron, 467 U.S. at 842-43.
15. Brand X, 545 U.S. at 982-83.
16. See infra Section II.B.
17. See Sunstein, supra note 3, at 2088.
18. Chevron, 467 U.S. at 842-43.
19. This is not even to speak of the fact that Congress may not realize that such problems exist for the same reason that it delegates in the first place: it lacks the expertise to comprehend the fine-grained nature of a problem or the fact that an extant regulatory response has become inadequate.
20. Substantive and temporal flexibility are of course simply two dimensions of the same phenomenon.
21. See Sunstein, supra note 3, at 2088 ("New developments involving technological capacity, economics, the international situation, or even law may affect regulatory performance. Congress is unable to amend every statute to account for these changes . . . [and] administrators are in a far better position than courts to interpret ambiguous statutes in a way that takes account of new conditions.").
22. Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 134 (1990) ("[T]he Commission has both the authority and expertise generally to adopt new policies when faced with new developments in the industry."); NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975) ("The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.").
23. See Bamberger, supra note 3, at 1302.
24. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
25. Id. at 42 (quoting In re Permian Basin Area Rate Cases, 390 U.S. 747, 784 (1968)). The Court nonetheless displayed a minor preference for stable administrative policies and refused to treat alterations in agency rules as equivalent to the establishment of new rules: "[A]n agency changing its course by rescinding a rule," explained the Court, "is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance." Id.
26. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863-64 (1984). There was no judicial interpretation of the Clean Air Act's "stationary source" language predating Chevron, which is why the Brand X question remained unaddressed.
27. See Dotan, supra note 3, at 1033 ("The Court introduced the presumption that statutory ambiguity reflects congressional intent to delegate interpretive power to administrative agencies, discarding the distinction between interpretation and policymaking."); Sunstein, supra note 3, at 2093, 2103.
28. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) ("An agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is 'entitled to considerably less deference' than a consistently held agency view." (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981))); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994); Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 698 (1991); Mullins Coal Co. v. Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor, 484 U.S. 135, 159-60 (1987); Dotan, supra note 3, at 1025.
29. Rust v. Sullivan, 500 U.S. 173, 186 (1991) (quoting Chevron, 467 U.S. at 862). The Rust Court noted, consistent with its Chevron jurisprudence, "[a]n agency is not required to establish rules of conduct to last forever, but rather must be given ample latitude to adapt its rules and policies to the demands of changing circumstances." Rust, 500 U.S. at 186-87 (citations omitted); see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 156-57 (2000); Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996); Dotan, supra note 3, at 1027 n.110 (collecting cases).
30. One scholar has proposed that the most sensible way to rationalize the courts' back-and-forth pronouncements on the question was through an examination of the procedures employed by an agency in arriving at its most recent interpretation. See Dotan, supra note 3, at 1029, 1043-46. A court should award deference, according to Professor Dotan, if and only if an agency arrived at its newer interpretation pursuant to procedures that are at least as formal and as general (meaning that they resemble a rulemaking, rather than an adjudication) as the procedures from which the previous interpretation derived. See id. at 1030-46. This is an interesting approach but one that is largely orthogonal to the present issue. After United States v. Mead Corp., 533 U.S. 218 (2001), and Brand X, the vast majority of new statutory interpretations that can command Chevron deference and override a prior judicial pronouncement - and especially the vast majority of interpretations that announce significant policy shifts and thus form the core concern of this Article - will come via notice-and-comment rulemaking.
31. See generally Merrill & Hickman, supra note 3.
32. For instance, the question of which agency interpretations were entitled to Chevron deference remained. See, e.g., United States v. Mead Corp., 533 U.S. 218, 229-31 (2001) (holding that a U.S. Customs Service ruling was not entitled to Chevron deference); Christensen v. Harris County, 529 U.S. 576, 587 (2000) (holding that opinion letters are not entitled to Chevron deference).
33. Merrill and Hickman catalogue fourteen questions of varying degrees of importance, including such relatively banal issues as whether Chevron applies to "cross-referenced statutes, as when a general statute cross-references a statute that an agency is charged with administering, or when a statute an agency is charged with administering cross-references a general statute or general principles of common law." Merrill & Hickman, supra note 3, at 849-52.
34. See Russell L. Weaver, Some Realism About Chevron, 58 MO. L. REV. 129, 162 & n.223 (1993).
35. Merrill & Hickman, supra note 3, at 852; Pierce, supra note 3.
36. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863-84 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 136-37, 140 (1944).
37. The set of significant cases that the Supreme Court and lower courts have decided in the agency's favor pursuant to Chevron deference is indeed vast; for a small sampling of the most momentous Supreme Court cases, see, e.g., Utah v. Evans, 536 U.S. 452 (2002) (congressional reapportionment); Barnhart v. Walton, 535 U.S. 212 (2002) (eligibility for Social Security Disability payments); Dep't of Hous. & Urban Dev. v. Rucker, 535 U.S. 125 (2002) (public housing evictions); New York v. FERC, 535 U.S. 1 (2002) (open access to electric transmission lines); United States v. O'Hagan, 521 U.S. 642 (1997) (insider trading rules); PUD No. 1 of Jefferson County v. Wash. Dep't. of Ecology, 511 U.S. 700 (1994) (state clean water regulation); Rust v. Sullivan, 500 U.S. 173 (1991) (family planning gag rule); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (jurisdiction to regulate water pollution under the Clean Water Act).