Chevron's Foundation

This Article addresses the question of how a court can justify deferring to an administrative agency interpretation of a statute under the Chevron doctrine given the accepted understanding that Article III of the Constitution makes the judiciary the ultimate decider of the meaning of law in any case or controversy that is properly before a court. It further considers the ramifications of the answer to that question on the potential forms that any doctrine of interpretive deference may assume. This Article first rejects congressional intent to delegate interpretive primacy to agencies as the basis for Chevron. It argues that such intent is an unsupportable fiction that distracts attention from judicial responsibility for the Chevron doctrine. Instead, it posits that Chevron is better viewed as a doctrine of judicial self-restraint under the courts' Article III responsibilities. It then analyzes how this view of Chevron might influence when and how the doctrine should operate. INTRODUCTION How can a court justify deferring to an administrative agency interpretation of a statute under the Chevron (1) doctrine given the accepted understanding that Article III of the Constitution makes the judiciary the ultimate decider of the meaning of law in any case or controversy that is properly before a court? That is the question this Article addresses. (2) It further considers the implications of the answer on the potential forms that any doctrine of interpretive deference may assume. Several commentators have addressed what political theory best justifies the administrative state. (3) This normative question has ramifications for the Chevron doctrine. In particular it provides insights about the circumstances in which it is preferable for the court to defer to an agency interpretation. It also provides guidance about how to structure any deference doctrine to maximize its benefits. (4) For example, a theory based on pluralism would justify a court demanding agency procedures to ensure that all affected groups are represented in the process, but then deferring to an agency interpretation as long as the agency remained within the bounds of its statutorily authorized power. (5) Alternatively, a theory based on deliberative democracy might justify a court deferring on a legal question when the agency has sufficiently deliberated about its reading of the law. (6) It is imperative, however, to distinguish the normative question about what political theory best justifies the administrative state from the positive question of how, under any such theory, a court can justify "ducking" what would seem to be its responsibility to provide a definitive interpretation of a statute. The positive question, being one of how the courts can forfeit what seems to be a constitutional responsibility, is prior to the normative one. The normative question arises only after the positive question has been answered, and that answer will constrain the permissible responses to the normative question. Those who elide the constitutional question thus subject themselves to criticism that, whatever the attractiveness of their normative prescription for Chevron, their prescription may be constitutionally untenable. At least one scholar has proposed a pragmatic understanding of Chevron that conflates the two questions, thereby advocating that Chevron apply only when a hodgepodge of factors reflecting disparate theoretical levels of inquiry are satisfied. (7) By treating constitutional justifications and policy considerations on an equal footing, this understanding forfeits any potential to explain how the factors that bear on this question should fit together in resolving it. Perhaps such confusion by scholars is excusable given that the Supreme Court's expositions on the bounds of the Chevron doctrine do not distinguish the positive question of the constitutional basis for Chevron from the normative question of what the Chevron doctrine should look like. …