Chevron's foundation

Notre Dame Law Review

Volumn 86, Issue 1, 2011, Pages 273-312

  Seidenfeld, Mark ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79957508269     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (262)

1. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
2. I am not the first to inquire into the tension between Chevron and the statement in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803), that it is the province of the courts to say what the law is.
3. See, e.g., Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 26 (1983) (contending that delegation of lawmaking to an agency includes within it the power to interpret the statute authorizing that power);
4. Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580, 2589-98 (2006) (advocating the abandonment of judicial primacy in the interpretive process in light of the legal realist recognition that statutory interpretation involves policymaking). As will become clear, I do not find prior reconciliations of the tension persuasive.
5. See, e.g., MARTIN SHAPIRO, WHO GUARDS THE GUARDIANS? 1-35 (1988);
6. Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 COLUM. L. REV. 1, 31-86 (1998);
7. Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1541-43 (1992);
8. Richard Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667,1805-13 (1975);
9. Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 59-64 (1985).
10. Questions relating to the optimal structure of the Chevron doctrine too are ones that I have previously addressed. See, e.g., Mark Seidenfeld, A Syncopated Chevron : Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 TEX. L. REV. 83 (1994).
11. See Stewart, supra note 3, at 1671-76.
12. See Seidenfeld, supra note 3, at 1548-49.
13. See Evan J. Criddle, Chevron 's Consensus, 88 B.U. L. REV. 1271, 1275 (2008).
14. The best known value protected by resistance norms is federalism. See Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549,1552 (2000) (coining the phrase "resistance norm" for a doctrine meant to discourage but not ban government action that impinges on constitutionally recognized interests);
15. see also Gregory v. Ashcroft, 501 U.S. 452, 467 (1991) (interpreting the ADEA to exclude state judges from protection against mandatory retirement because state sovereignty concerns required that any interference with states' prerogatives about retention of judges must be clearly stated in the Act);
16. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985) (holding that abrogation of state immunity from suit in federal court under the Fourteenth Amendment requires a clear statement by Congress).
17. There is a potential question of whether there are constitutional limits on Congress dictating to courts how to go about interpreting statutes, which could have a bearing on Congress's authority to mandate that courts defer to an agency interpretation of a statute that the agency administers. Regardless of the answer to that question, that I find little support for the proposition that Chevron flows from statutory prescription, see infra Part I, obviates my need to discuss constitutional limitations had Congress in fact attempted to mandate Chevron deference.
18. See Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2086-88 (2002) (defending the generally accepted view that Congress can tell courts how to interpret statutes);
19. see also infra note 84 (discussing limits on Congress's power to dictate methods of interpretation).
20. But see Linda D. Jellum, "Which Is to Be Master, " the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, 56 UCLA L. REV. 837, 897-98 (2009) (arguing that there are limits to Congress's power to enact "statutory directives").
21. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1159-61 (tracing Justice Scalia's and Justice Breyer's perspectives on the mandated deference).
22. Not all scholars have accepted the intentionalist foundation for Chevron.
23. See, e.g., Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the Nondelegation Doctrine, 2 ADMIN. L.J. 269, 269-70 (1988);
24. John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612, 623-27 (1996);
25. Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 GEO. L.J. 2225, 2235-37 (1997). But, currently, the consensus of scholars seems to support the intentionalist foundation.
26. See Elizabeth Garrett, Legislating Chevron, 101 MICH. L. REV. 2637, 2642-43 (2003);
27. see also Sunstein, supra note 2, at 2589 (noting that consensus has developed that Chevron "turns on congressional will"). Even most who recognize the fictitious nature of presumed congressional intent regarding Chevron deference nonetheless preface that deference on whether, within a particular statutory context, it is reasonable for courts to assume that Congress would have intended Chevron deference.
28. See, e.g., Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370 (1986) (asserting that even pre-Chevron the fiction of legislative intent about agency authority to interpret statutes allows judges to defer to agency interpretations when they believe deference is appropriate in light of institutional competence);
29. Manning, supra, at 617-18 (presuming that Congress would intend agencies rather than courts make any policy determinations necessary to interpret a statute);
30. Abigail R. Moncrieff, Reincarnating the "Major Questions" Exception to Chevron Deference as a Doctrine of Noninterference (or Why Massachusetts v. EPA Got It Wrong), 60 ADMIN. L. REV. 593, 621-22 (2008) (advocating Chevron deference when a decision was sufficiently major to have prompted some congressional attention to the precise interpretive issue facing the agency).
31. By interpretive primacy, I do not mean to suggest that courts must defer to all agency interpretations, but rather only that within certain bounds courts must defer to agency interpretations of statutes.
32. See Peter L. Strauss, Overseers or "The Deciders"The Courts in Administrative Law, 75 U. CHI. L. REV. 815, 817 (2008) (distinguishing between the courts' role of deciding at step one of Chevron and overseeing agency decisions at step two of Chevron).
33. 533 U.S. 218 (2001).
34. Id. at 226-31.
35. See Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2171-75 (2004);
36. Thomas W. Merrill & Kristin E. Hickman, Chevron 's Domain, 89 GEO. L.J. 833, 837 (2001).
37. See John F. Duffy, Administrative Common Law injudicial Review, 77 TEX. L. REV. 113, 189-207 (1998).
38. See David J. Barron & Elena Kagan, Chevron 's Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 212.
39. See Breyer, supra note 12, at 370;
40. William Funk, Faith in Texts-Justice Scalia's Interpretation of Statutes and the Constitution: Apostasy for the Rest of Us?, 49 ADMIN. L. REV. 825, 841-48 (1997);
41. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2379 (2001);
42. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 517.
43. See Manning, supra note 12, at 621-25.
44. See id. at 625.
45. 5 U.S.C. §706 (2006).
46. 533 U.S. 218 (2001).
47. See Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443,1448 (2005);
48. Adrian Vermeule, Introduction: Mead in the Trenches, 71 GEO. WASH. L. REV. 347, 347-49 (2003).
49. See Mead, 533 U.S. at 226-27.
50. See id. at 229-32.
51. See Lisa Schultz Bressman, Chevron 's Mistake, 58 DUKE L.J. 549, 563 (2009) (illustrating how the factors on which Mead focuses can lead courts to defer less to agency interpretations than Congress may have actually intended).
52. See Mead, 533 U.S. at 230.
53. See id. at 230 n.12.
54. See Vermeule, supra note 24, at 349.
55. See 2 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE 817-20 (4th ed. 2002).
56. As Justice Scalia points out in his Mead dissent, procedures usually are seen as a means of developing an adequate factual record to justify an action, not a factor related to questions of statutory interpretation.
57. See Mead, 533 U.S. at 243 (Scalia, J., dissenting).
58. See id at 233 (majority opinion).
59. See 29 U.S.C. §160(c) (2006) (noting that an ALJ's recommendation may become the final order of the agency if there are no exceptions filed with the National Labor Relations Board);
60. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 759 (2002) ("The ALJ's ruling subsequently becomes the final decision of the FMC unless a party, by filing exceptions, appeals to the Commission or the Commission decides to review the ALJ's decision...."); 20 C.F.R. §404.929 (2010) (noting that initial determinations by an ALJ regarding Social Security may be reviewed by other ALJs).
61. See, e.g., 5 U.S.C. §557 (2006) (authorizing initial decisions of ALJs pursuant to the APA to become the final decision of the agency if the agency does not decide the case itself).
62. 535 U.S. 212 (2002).
63. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) ("[The Court] consider[s] that the rulings, interpretations and opinions of [an] [administrator under [an] Act, while not controlling upon the courts by reason of administrator under [an] Act, while not controlling upon the courts by reason of their authority; do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.").
64. See Barnhart, 535 U.S. at 222.
65. See id.
66. United States v. Mead Corp., 533 U.S. 218, 229 (2001) (emphasis added)
67. (quoting Chevron U.S.A Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 845 (1984)).
68. See id. at 230 n.11.
69. That Mead is premised on constructive intent is further supported by the frank recognition by Justice Breyer, who joined the Mead majority, that congressional intent with respect to agency interpretive primacy is a fiction.
70. See Stephen Breyer, Our Democratic Constitution, 77 N.Y.U. L. REV. 245, 267 (2002). Justice Scalia premises much of his dissent on the fact that Mead deviated from Chevron's presumption about agency primacy by purporting to look for actual intent.
71. See Mead, 533 U.S. at 239-40 (Scalia, J., dissenting).
72. See Mead, 533 U.S. at 230 (majority opinion).
73. See, e.g., WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 88-93 (2d ed. 2006);
74. MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABUSHMENT 120 (2d ed. 1989);
75. DAVTD R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 115-16 (2d ed. 2004);
76. cf. R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 267-69 (1990) (explaining why legislators' interest in reelection will, in some cases, lead to enactment of legislation that serves the interest of the general public).
77. See Garrett, supra note 12, at 2648-51.
78. See Merrill & Hickman, supra note 16, at 872-82;
79. Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 480-81 (2002).
80. See Merrill & Hickman, supra note 16, at 854-56.
81. See id. at 875-87.
82. See id. at 884.
83. Merrill and Hickman borrow this part of their argument from John Duffy,
84. see id. at 877 n.232
85. (citing Duffy, supra note 17, at 199-202), whose variation on the force of law criteria I address infra note 53 and accompanying text .
86. See Merrill & Hickman, supra note 16, at 878.
87. Merrill and Hickman essentially recognize this problem, but claim to surmount it by observing that Congress recognizes that in many cases the agency decision will not be challenged, and hence its interpretation will stand.
88. See id.
89. See Duffy, supra note 17, at 199-203.
90. See Monaghan, supra note 2, at 26.
91. Id.
92. See DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS 156-57 (1999) (reporting a greater likelihood of delegation to federal agencies rather than other institutions when the President and Congress are controlled by the same party);
93. Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 ADMIN. L. REV. 1, 15-19 (1994) (discussing the competition between Congress and the executive branch to control the administrative state).
94. See Duffy, supra note 17, at 158-59;
95. Merrill & Watts, supra note 46, at 479-80.
96. See Garrett, supra note 12, at 2644 (raising questions about the accuracy of any presumption about congressional intent regarding whether courts or agencies should fill particular gaps in statutes).
97. See 29 U.S.C. §152(3) (2006) (DEFINING THE TERM "EMPLOYEE" AS USED IN THE NATIONAL LABOR RELATIONS ACT).
98. 322 U.S. 111 (1944).
99. See id. at 130-31.
100. Id. at 131.
101. 330 U.S. 485 (1947).
102. See id. at 486-88.
103. Id at 493.
104. There are reasons to believe that the Court in Chevron actually thought it was following the Hearst line of cases and not significantly changing the doctrine by which courts review agency interpretations of their authorizing statutes. Chevron was unanimous and the opinion reads as if the doctrine it states was firmly established and not controversial. Moreover, Justice Stevens, who wrote the opinion in Chevron, later tried to interpret that opinion as applying only to agency application of law to facts, which is the realm of Hearst.
105. See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);
106. see also Bernard Schwartz, "Shooting the Piano Player"? Justice Scalia and Administrative Law, 47 ADMIN. L. REV. 1, 46-49 (1995) (describing Justice Scalia's vociferous objection to the narrow reading Justice Stevens gave to Chevron in Cardoza-Fonseca).
107. See Breyer, supra note 12, at 371.
108. See Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 COLUM. L. REV. 1093, 1120 (1987). The issue of whether the statute adopted the common law definition of employee was also raised in Hearst, and this issue would have significant impact beyond the case, essentially barring all common law independent contractors from the protections of the Act. The Court treated this issue as one of law, and while agreeing with the agency interpretation, did not rely on any deference to that interpretation in resolving the issue.
109. See NLRB v. Hearst Publ'ns, Inc., 322 U.S. 111, 120-24 (1944).
110. Dan Gifford recently advocated that the Court return to something akin to the Hearst-Packard distinction to determining Chevron's applicability, relying on the assumption that for issues of great importance, Congress would intend to have the courts constrain agency interpretations.
111. See Daniel J. Gifford, The Emerging Outlines of a Revised Chevron Doctrine: Congressional Intent, Judicial Judgment, and Administrative Autonomy, 59 ADMIN. L. REV. 783, 811-17 (2007). Gifford claims that Justice Breyer's opinion in Barnhart is best understood as a move toward that approach.
112. See id. While Gifford should be lauded for recognizing the likelihood that Congress has complex intent with respect to interpretive primacy, his approach would apply Chevron precisely for those issues likely to fall under Congress's radar, and hence where Congress likely had no intent about such primacy. Moreover, because Congress has more influence over agencies than courts, one might surmise that it would be more apt to delegate interpretive authority to agencies for important matters.
113. Cf. David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 CARDOZO L. REV. 947, 965-66 (1999) (modeling legislative delegation based on the costs of delegating relative to the costs of determining the matter legislatively).
114. Interestingly, despite Justice Scalia noting that such a view of deference would destroy the significance of Chevron, see Scalia, supra note 19, at 520, his application of Chevron is not much more significant given that, as he phrases it, "[o]ne who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists."
115. Id. at 521.
116. Cf. Manning, supra note 12, at 626, 633-34 (concluding that the lack of any real congressional intent regarding Chevron implies that the doctrine has its basis in "constitutional commitments to electoral accountability") .
117. Franks v. Bowman Transp. Co., 424 U.S. 747, 755 (1976)
118. (quoting Flast v. Cohen, 392 U.S. 83, 94-95 (1968)) (internal quotation marks omitted). The limiting aspects of Article III are most evident in its requirement that courts decide only cases and controversies under such doctrines as standing, ripeness, and mootness.
119. See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 883 (1983) (describing judicial concern about courts intruding into the operation of the political branches);
120. Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432, 1474-75 (1988).
121. Article III's limit on the courts' interpretive endeavors "[p]erhaps ... is better stated ... as the absence of a judicial right to upset a political choice." Kmiec, supra note 12, at 277.
122. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803).
123. Baker v. Carr, 369 U.S. 186, 217 (1962). Others have drawn the analogy between Chevron deference and deference to political decisions that flow from the political question doctrine.
124. See, e.g., David M. Hasen, The Ambiguous Basis of Judicial Deference to Administrative Rules, 17 YALE J. ON REG. 327, 359 (2000) (distinguishing political question deference as involving matters of the propriety of any judicial determination rather than the grounds for a determination). The analogy, while helpful, is limited in value because, unlike deference under justiciability doctrines, Chevron retains a potentially active role for the court in overseeing the executive branch's interpretation of an ambiguous statute.
125. See Curtis A Bradley, Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649, 707 (2000) (noting that " Chevron deference is not absolute 'political question' deference").
126. See Kmiec, supra note 12, at 278;
127. Pierce, supra note 12, at 2229-30, 2232-33 (1997). These scholars, however, neither tied their arguments specifically to the bounds of Article III or any particular structure of the Constitution, nor addressed the extent to which courts can make policy as part of the judicial power.
128. See Manning, supra note 12, at 633-34.
129. See id.
130. See id. at 617.
131. See id. at 634. Essentially, Manning provides a constitutional justification for Scalia's view of Chevron as stemming from a presumed congressional intent.
132. The same criticism applies to Sunstein's view that Chevron reflects a principle that key policy judgments should be made by policymaking officials.
133. See Sunstein, supra note 2, at 2598.
134. In this Article, I refrain from addressing whether the Constitution restricts Congress's power to dictate how courts should perform their interpretive tasks, although my intuitions are that the Constitution provides some bounds on this power. See supra note 9. By relying on presumed congressional intent, Manning's view accepts that Article III does not limit Congress's power to dictate interpretive methodology to the courts.
135. Manning posits a presumption that when Congress has authorized agencies to act, the Constitution presumes that policy decisions that arise in the interpretive process are to be made by agencies. See Manning, supra note 12, at 634.
136. Congressional control over agency authority stems from its explicit Section 8 powers, including the Necessary and Proper Clause, U.S. CONST, art. I, §8, but may be limited by the constitutional mandate that Congress not circumvent bicameralism and presentment.
137. See Manning, supra note 12, at 652-53;
138. see also Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 597-99 (1984) (noting that any significant constitutional power to alter the shape of the federal government falls to Congress's power under the Necessary and Proper Clause.
139. Nonetheless, unlike others who have recently considered the question of Congress's ability to prescribe statutory interpretive directives, see Rosenkranz, supra note 10, at 2140, I entertain the possibility that statutory interpretation involves a judicial function implicit in Article III's vesting of the judicial power in the courts.
140. Accord Jellum, supra note 10, at 867-70. Hence, I am open-minded to the possibility that there are limits on Congress's ability to prescribe how courts are to interpret statutes, even if such prescriptions demand less judicial deference to agency interpretations. My intuition suggests that there is such a limit. I am troubled, for example, by a statute that would preclude a court from giving even Skidmore deference to an agency interpretation.
141. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Such a statute would limit the court from informing itself as it sees necessary on an interpretive issue for which the courts are responsible for issuing an interpretation with the power to control, not just persuade.
142. See id. at 139-40.
143. Those who see Chevron as limited only by nondelegation principles run into problems explaining why a statute that gives too little guidance to allow deference to an agency to exercise interpretive primacy is not unconstitutionally vague when it grants that same deference to a court.
144. Cf. Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. CAL. L. REV. 405, 428-29 (2008) (pointing out that vague statutes that do not call for agency interpretation essentially delegate policymaking to the courts).
145. This would essentially overrule National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967, 984-85 (2005), which provides that an agency may ignore prior judicial interpretation of a statute where the courts determine that the interpretation resolved a statutory ambiguity rather than reflected a determination of statutory meaning.
146. This postulate is consistent with findings that judges' decisions whether to find statutes sufiiciently unclear to justify deferring to an agency interpretation correlates with the ideological preferences of the judges. See Cass R. Sunstein & Thomas J. Miles, Depoliticizing Administrative Law, 58 DUKE L.J. 2193, 2201-09 (2009).
147. Judges may have preferences about approaches to administrative law, such as a belief that agencies should not be afforded deference for interpretations that are in their immediate interest. See Timothy K. Armstrong, Chevron Deference and Agency Self-Interest, 13 CORNELL J.L. & PUB. POL'Y 203, 208-10 (2004).
148. The psychological theory of cognitive dissonance supports the likelihood that a judge will use her interpretive discretion to reduce dissonance between her values and the outcome of her interpretive decision. See LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE 18-19 (1957).
149. Scalia, supra note 72, at 896 (arguing that the constitutional standing requirement of Article III prevents unwarranted judicial intrusion into the execution of the law).
150. Given the uncontroversial nature of the Chevron opinion, it is likely that the Supreme Court never intended Chevron to be a major extension of prior case law changing the relationship of reviewing courts and agencies with respect to statutory interpretation. This is also supported by Justice Stevens, the author of Chevron, suggesting in INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48 (1987), that Chevron deference is appropriate only when an agency applies law to facts and when it engages in pure statutory interpretation.
151. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984).
152. Id.
153. See supra notes 40, 45-51 and accompanying text.
154. See Lemos, supra note 86, at 429 (stating that "[a]lthough Chevron was concerned with statutory implementation by administrative agencies, there is no good reason to think that courts are not cast into the same policy-making role when Congress chooses them as its delegates");
155. Sunstein, supra note 2, at 2591-92 (noting the Legal Realist critique of judicial statutory interpretation as policy laden).
156. See U.S. CONST, art. 3, §2, cl. 2.
157. See Scalia, supra note 19, at 515.
158. On the use of resistance norms of interpretation generally, see Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 331-32 (2000); Young, supra note
159. at 1552, coining the term. See also John F. Manning, Lessons from a Nondelegation Canon, 83 NOTRE DAME L. REV. 1541,1542 n.7 (2008) (tying Young's resistance norms to Sunstein's nondelegation canons).
160. By "legal factors" I mean those that do not explicity rely on the desirability of the outcome of the interpretation or a preferred vision of how government should operate. They include the meaning of a particular word, the impact of statutory structure, and consistency with precedent. Policy factors are those that are outside this definition and include evaluation of the probability or desirability of impacts of the interpretation and on the nonlinguistic canons of interpretation such as the avoidance canon.
161. In such situations courts frequently reject plain meaning of statutory text in favor of a possible but less natural reading to avoid absurd results. See United States v. Granderson, 511 U.S. 39, 47 n.5 (1994) (rejecting the plain meaning of the statute because it would lead to an absurd result);
162. id. at 70 (Rehnquist, C.., dissenting) (agreeing that courts should reject statutory clear meaning when it leads to absurd results);
163. In re Chapman, 166 U.S. 661, 667 (1897) ("[N]othing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion.").
164. As such, the norm is consistent with current judicial practice at step one. See INS v. Cardoza-Fonseca, 480 U.S. 421,448 (1987) (holding that at step one of Chevron courts are to employ the traditional tools of statutory interpretation).
165. See Duffy, supra note 17, at 193-99.
166. See Clinton v. New York, 524 U.S. 417, 445-46 (1998) (stating that Congress cannot assign the President the authority to repeal statutes without amending the Constitution).
167. In this discussion, I assume that judges are influenced by preferences about particular policy outcomes but can be constrained by law and institutional structures.
168. See Thomas C. Grey, Modern American Legal Thought, 106 YALE L. 493, 503 (1996) (describing Legal Realists' position that the indeterminacy of law allows judges to pursue policy preferences). Of course, judges also react to other preferences, such as about how the legal system should operate and even whether a decision will enhance their reputation as a judge.
169. See Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1, 15 (1993). To the extent that judges forfeit discretion to decide some matters of statutory interpretation, Chevron will interfere with judges' ability to pursue such other preferences as well, unless a judge simply has a preference for allowing the executive branch to make such decisions.
170. Chevron enables the Supreme Court to constrain lower courts' interpretive discretion while deciding only a small number of cases a year.
171. See Strauss, supra note 68, at 1117-19.
172. See, e.g., Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005);
173. Barnhart v. Walton, 535 U.S. 212, 221-22 (2002).
174. The potential for such a "passive aggressive" use of judicial doctrine to allow courts to implement their policy preferences by declining to decide an issue is not unique to the nvocation of Chevron. The problem arises whenever the court has discretion under existing doctrine to determine that a petitioner fails to meet requirements allowing the court to decide a claim, which occurs frequently in claims seeking review of agency decisions under the law of standing, finality and ripeness.
175. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-62 (1992) (suit dismissed for lack of standing);
176. Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 926 (9th Cir. 1999) (suit dismissed because the agency action was not final).
177. See Jacob E. Gersen & Adrian Vermeule, Chevron as a Voting Rule, 116 YALE L.J. 676, 699-700 (2007).
178. The critique might also point out that, to the extent the judge has discretion to find clear meaning at step one of Chevron when an agency interpretation is discordant with her preferences, she forfeits nothing in return for Chevron's enabling her to deny value-driven decisionmaking.
179. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984).
180. Cf. E. Donald Elliott, Environmental Markets and Beyond: Three Modest Proposals for the Future of Environmental Law, 29 CAP. U. L. REV. 245, 257 (2001) (intimating that Chevron is valuable for correcting abuses by courts that "imposed their own will on the law in the guise of interpreting congressional intent").
181. See Kenneth A. Bamberger & Peter L. Strauss, Chevron 's Two Steps, 95 VA. L. REV. 611, 611 (2009).
182. But cf. Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 VA. L. REV. 597, 597-98 (2009) (arguing that Chevron's formulation artificially divides what is a single inquiry into two steps and advocating that courts and commentators recognize that the doctrine has only one step).
183. See Merrill & Hickman, supra note 16, at 836;
184. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 208 (2006).
185. See supra note 42 and accompanying text.
186. Cf Breyer, supra note 12, at 370 (discussing how pre -Chevron, judicial acceptance of the fiction of congressional intent, on a case-by-case basis, allowed courts to defer based on their reading of relative competence of courts and agencies to determine the meaning of a statute in a particular context).
187. See United States v. Mead Corp., 533 U.S. 218, 228-30 (2001).
188. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation, 86 COLUM. L. REV. 223, 230-31 (1986).
189. See DOUGLAS YATES, BUREAUCRATIC DEMOCRACY 132 (1982) ("[T]he force of [guild-like] professionalism [within agency staff] is diminished by conflict among various professional groups over the shape and substance of policy.").
190. See Mark Seidenfeld, Who Decides Who Decides: Federal Regulatory Preemption of State Tort Law, 65 N.Y.U. ANN. SURV. AM. L. 611, 645 (2010) (contending that rulemaking is less susceptible to capture or idiosyncrasy of values than action of a single person or even from a single office within an agency).
191. The more significant and notorious an agency action, the more likely that some interest group is going to pull the "fire alarm" by complaining to Congress or the White House.
192. See Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 166, 172-73 (1984). For the president especially, action of political appointees is more likely to coincide with the president's preferences than action by professional staff.
193. See Mark Seidenfeld, A Big Picture Approach to Presidential Influence on Agency Policy-Making, 80 IOWA L. REV. 1, 28-29 (1994).
194. See 5 U.S.C. §553 (2006) (requiring notice-and-comment proceedings for substantive rules);
195. Exec. Order No. 12,866, 3 C.F.R. 638-49 (1993), reprinted in 5 U.S.C. §601 app. at 745-49 (2006) (requiring an agency to include in its regulatory agenda all regulations under development and review as well as all significantly important regulatory actions the agency expects to issue).
196. In a sense, the formalization of procedure acts as a reminder of the significance of the action the agency is taking. An analogy would be to doctrine of the Catholic Church under which the Pope must explicitly specify that he is speaking "excathedra" (i.e. metaphorically from the Chair of Saint Peter) when he intends to invoke infallibility.
197. See Papal Infallibility, ENCYCLOPEDIA BRITANNICA ONLINE, http://www.britannica.com/EBchecked/topic/441822/papal-infallibility (last visited Sept. 9, 2010) ("The definition of the first Vatican Council (1869-70), established amid considerable controversy, states the conditions under which a pope may be said to have spoken infallibly, or ex-cathedra ('from his chair' as supreme teacher). It is prerequisite that the pope intend to demand irrevocable assent from the entire church in some aspect of faith or morals."). I thank my good friend Walter Kamiat for bringing this point and the analogy to the ex-cathedra doctrine to my attention.
198. Mead was a generalization of the Court's holding in Christensen v. Harris County, 529 U.S. 576, 587 (2000), denying Chevron's applicability to an interpretation contained in an agency opinion letter, which under the APA is an interpretive rule.
199. See 5 U.S.C. §551(4) (2006) (defining "rule").
200. See United States v. Mead Corp., 533 U.S. 218, 239 (2001) (Scalia, J., dissenting).
201. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984).
202. See id.
203. See Seidenfeld, supra note 4, at 133-34.
204. For example, the Department of Health and Human Services essentially admitted that it did not try to reach the best interpretation for a statute prohibiting federal funding of abortion, which regrettably the Supreme Court not only upheld but for which the Court actually complimented the agency.
205. See Rust v. Sullivan, 500 U.S. 173, 187 (1991);
206. see also Yehonatan Givati, Strategic Statutory Interpretation by Administrative Agencies, 12 AM. L. & ECON. REV. 95, 96 (2010) (modeling agency statutory interpretation to show that the standard of review will affect the aggressiveness of the agency choice of interpretation);
207. Seidenfeld, supra note 4, at 101-03 (describing this incident of admitted lack of care in interpretation).
208. See Scalia, supra note 19, at 521.
209. For a statement of the spectrum of potential approaches to step one, see Gersen & Vermeule, supra note 109, at 688-90.
210. See Zuni Pub. Sch. Dist. No. 89 v. U.S. Dep't of Educ, 550 U.S. 81, 108-22 (2007) (Scalia, J., dissenting) (criticizing use of legislative history in statutory interpretation at Chevron step one).
211. See RICHARD NISBETT & LEE ROSS, HUMAN INFERENCE 226-27 (1980) (noting that people's causal accounts explaining their own behavior are subject to the same biases as accounts of others' behavior);
212. LEE Ross & RICHARD E. NISBETT, THE PERSON AND THE SITUATION 79-82 (1991) (noting that when a person tries to explain his or her own reaction to a situation the mental construal process to do so can lead to bias);
213. Adam Benforado & Jon Hanson, The Great Attributional Divide: How Divergent Views of Human Behavior Are Shaping Legal Policy, 57 EMORY L.J. 311, 348-49 (2008) (claiming that judges are more apt to attribute behavior to both external and internal influences, indicating not only that this influence occurs, but also that judges are aware of it);
214. Adam Benforado & Jon Hanson, Legal Academic Backlash: The Response of Legal Theorists to Situationist Insights, 57 EMORY L.J. 1087, 1127-28 (2008) (addressing claims by the fields of social psychology and social cognition that "humans often are moved by forces that exist outside of their conscious awareness").
215. See Gersen & Vermeule, supra note 109, at 690-91.
216. In appeals from findings made by lower judges, appellate courts generally accept factual findings unless clearly erroneous. See Amanda Peters, The Meaning Measure and Misuse of Standards of Review, 13 LEWIS & CLARK L. REV. 233, 245 (2009). In appeals from jury findings of fact, and from findings after formal administrative hearings, judges are to accept the findings of the lower tribunal supported by substantial evidence in the record.
217. See 5 U.S.C. §706 (2006) (providing for substantial evidence review of facts when a determination is required by law to be made after a formal hearing);
218. Peters, supra, at 245. Not only does the law require that judges accept findings that they would not have made themselves, but it also attempts to distinguish between the levels of deference given under these two standards.
219. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-93 (1951) (specifying the nuances of review of fact finding under the substantial evidence standard in the APA).
220. 529 U.S. 120 (2000).
221. See id. at 125-26.
222. Pub. L. No. 75-717, 52 Stat. 1040 (1938) (codified as amended at 21 U.S.C. § § 301-399 (2006)).
223. See Brown & Williamson, 529 U.S. at 158.
224. See id. at 126.
225. As a matter of formal logic, this reflects that the statement P implies Q is true whenever P is not true. See PATRICK J. HURLEY, A CONCISE INTRODUCTION TO LOGIC 330 (7th ed. 2000). Essentially, by the majority's reading of the statute, Congress determined that if the tobacco industry did not manipulate the nicotine level delivered by cigarettes then the FDA does not have authority over tobacco products. The fact that the premise is false means that all bets are off about the truth of the conclusion. Coupled with statutory language under which tobacco products clearly fell within the definition of drug delivery devices, the agency's interpretation is reasonable.
226. For a description of the debate on use of one source, legislative history, in statutory interpretation, see Cheryl Boudreau et al., What Statutes Mean: Interpretive Lessons from Positive Theories of Communication and Legislation, 44 SAN DIEGO L. REV. 957, 981-91 (2007).
227. This follows only if the choice of sources of law at which a judge may look in interpreting statutes is a matter to be decided by judges under their Article III powers. Under a foundation built on legislative intent, presumably Congress could tell a court what sources of law are and are not appropriate for use in statutory interpretation.
228. See Rosenkranz, supra note 10, at 2143-47.
229. 550 U.S. 81 (2007).
230. See id. at 90-91 (finding that the Secretary of Education's interpretation of a statute was reasonable given its broad language).
231. Compare id. at 100, with id. at 108-10 (Scalia, J., dissenting) (arguing that the Secretary of Education's "implementing regulations do not look much like the statute").
232. See id. at 109, 121.
233. See Seidenfeld, supra note 4, at 103.
234. See Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHLKENT L. REV. 1253, 1263-66 (1996) (summarizing D.C. Circuit cases in which the court treated step two of Chevron as a variant on hard look review);
235. M. Elizabeth Magill, Step Two of Chevron v. Natural Resources Defense Council, in A GUIDE TO JUDICIAL AND POLITICAL REVIEW OF FEDERAL AGENCIES 85, 99 (John F. Duffy & Michael Herz eds., 2005).
236. See Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 44-47 (1983).
237. Compare Stephenson & Vermeule, supra note 113, at 597-98 (contending Chevron has only one step), with Bamberger & Strauss, supra note 112, at 611-13 (responding that Chevron has two steps).
238. See Stephenson & Vermeule, supra note 113, at 599-604.
239. See Gary S. Lawson, Reconceptualizing Chevron and Discretion: A Comment on Levin and Rubin, 72 CHI.-KENT L. REV. 1377, 1377-78 (1997).
240. See Stephenson & Vermeule, supra note 113, at 601-02.
241. See id. at 603-04.
242. See Bamberger & Strauss, supra note 113, at 611.
243. See id. at 613-15.
244. See id. at 615-16.
245. See id. at 616-21.
246. See 5 U.S.C. §706(2) (A) (2006) (requiring a court to hold unlawful and set aside agency action that is arbitrary, capricious, or an abuse of discretion).
247. See supra note 116 and accompanying text.
248. See Bamberger & Strauss, supra note 113, at 622-23.
249. See Levin, supra note 149, at 1267-68.
250. This is one of the critiques of the reasoned decision-making version of arbitrary and capricious review. See Jerry L. Mashaw, Improving the Environment of Agency Rulemaking: An Essay on Management, Games and Accountability, 57 LAW & CONTEMP. PROBS. 185, 200-04, 229-30 (1994);
251. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1400-01 (1992);
252. 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, 300-03, 308-13. Much ink has been spilled about the extent to which hard look review actually interferes with agency policymaking and whether the benefits of such review are worth the costs of potential interference.
253. See Mark Seidenfeld, Cognitive Loafing Social Conformity, and Judicial Review of Agency Rulemaking, 87 CORNELL L. REV. 486, 509-11 (2002) (arguing that judicial review provides significant benefits in the care agencies give to the rules they adopt);
254. Mark Seidenfeld, Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review, 70 OHIO ST. L.J. 251, 300-02 (2009) (contending that whether judicial review inefficiently discourages agency policymaking depends on many other factors that influence agency decisions to act).
255. See Mark Seidenfeld, supra note 3, at 1549-50;
256. Seidenfeld, supra note 4, at 129.
257. See Bamberger & Strauss, supra note 113, at 622 (doubting that "hard look" review plays much of a role in review of run-of-the-mill agency adjudications).
258. See id. at 622-23.
259. See id. at 623.
260. See Posner, supra note 105, at 28.
261. See Seidenfeld, supra note 4, at 130.
262. Cf. William S. Jordan, III, Ossification Revisited: Does Arbitrary and Capricious Review Significantly Interfere with Agency Ability to Achieve Regulatory Goals Through Informal Rulemaking?, 94 Nw. U. L. REV. 393, 415-17 (2000) (concluding that hard look review does not prevent agencies from adopting fundamental regulatory policies).