Agency-Centered or Court-Centered Administrative Law: A Dialogue with Richard Pierce on Agency Statutory Interpretation

In an earlier article I attempted to jump-start a conversation about agency statutory interpretation. I argued first for the importance of agency interpretive practice - asserting that agencies are "the primary official interpreters of federal statutes" - and lamented the paucity of secondary literature analyzing agency statutory interpretation as an independent or autonomous enterprise. The article then investigated, in a very preliminary way, both the normative and positive features of agency statutory interpretation. I asked, first, what norms a responsible administrator should observe when interpreting statutes and, second, how agencies interpret statutes in the actual practice of implementing the statutes in their charge. Although little could be concluded from this limited empirical investigation, it did uncover some striking discontinuities between agency interpretive practice and the interpretive approaches of reviewing courts during judicial review. This practical divergence between agency and judicial styles of interpretation reinforced a concern more fully developed in the article's normative analysis. Arguing largely from the standpoint of the institutional position of agencies in the American constitutional legal order, I developed a series of possible "canons of construction" for agency statutory interpretation. Although I put forth these "canons" very tentatively as the basis for further discussion, they revealed some substantial differences between our constitutional expectations for agency interpretive practice and the parallel normative expectations that we might have in relation to the judiciary. These normative divergences between agency and court interpretive methodologies led me to conclude that deference to agencies' statutory interpretation, as mandated by the Supreme Court in Chevron and its progeny, might be a much more complicated task than previously imagined. Professor Richard Pierce has challenged the basic premises of my original article. In the final paragraph of his essay, Pierce summarizes his objections to my position: I disagree with . . . Mashaw at the most fundamental level. Unlike . . . Mashaw, I do not believe that agencies are "the primary official interpreters of federal statutes." Rather, all agency statutory interpretations are subject to de novo review and potential rejection by a court through application of Chevron step one. Further, I do not believe that agencies should use methods of statutory interpretation that differ from the methods courts use. Pierce's critique lies well within a long tradition in American administrative law scholarship. The emergence of administrative law as a separate field of study almost coincided with the transformation of American legal education by Langdell's case method. Since that time, notwithstanding the exhortations of legal realists, positive political theorists, and critical legal scholars of various stripes, we have studied administrative law primarily by looking at what judicial opinions say about it. To be sure there has been much recent attention to political control of administration in the Executive Branch, cost-benefit analysis, and other clearance functions organized through the Office of Management and Budget, and so on. But my proposal goes beyond a focus on separation of powers questions as an integral part of administrative law. I am arguing for the study of agency statutory interpretation - and implicitly for the study of agency practice as a whole - as an autonomous enterprise. It seems to me not only odd, but perverse, that articles parsing the exquisite subtleties of Chevron or Skidmore deference fill our law reviews, while virtually nothing is said about the ways in which agencies should and do interpret the statutes in their charge. On this point I remain unrepentant. Hence, I must grapple with Richard Pierce's criticisms. My argument is straightforward: Agencies are responsible for implementing statutes; they are not responsible for applying judicial decisions, which, like Chevron, are directed to reviewing courts. In the process of implementation, federal administrative agencies are constantly engaged in statutory interpretation within the contexts of their unique institutional roles. This position makes them the primary interpreters of federal law, whose practices and normative commitments are worthy of independent study. Finally, because judicial and agency roles in the legal order diverge, their responsibilities may lead them to emphasize or employ divergent interpretive methodologies. Where methodology matters to substantive outcomes, this sets the stage for a paradox of deference where responsible judging may reject an interpretation generated by responsible administration.