This report analyzes Supreme Court nominee Elena Kagan's co-authored article, written with David Barron, on the nondelegation doctrine and the seminal administrative law case, Chevron U.S.A., Inc. v. Natural Resource s Defense Council, Inc . The article, which was written in 2001 while Kagan was a professor at Harvard Law School, covers a range of concepts in administrative law. Administrative law may be described as the body of law governing agency procedures, structure, and powers, as well as how citizens interact with the government. Administrative law and process encompass the implementation and interpretation of policies and programs enacted by Congress, the deference that should be accorded to different types of agency decisions and actions, and who ultimately decides whether agency interpretations of statutory ambiguities are permissible. The question of whether and when agencies or courts should take the predominant role in resolving statutory ambiguities through their interpretations raises classic separation of powers issues. While agencies generally fall within the executive branch of government, it is Congress that determines, in an act establishing the agency or subsequent statutes, the powers of the agency. Courts both interpret statutes and grant varying levels of deference to agency interpretations when examining questions such as whether an agency's action is in excess of its delegated statutory authority. According to Barron and Kagan, judicial deference to agency interpretations of legislative gaps presently depends on the formality of the procedures used by the agency and whether the agency's decision has general or particular applicability. Barron and Kagan find that the Supreme Court's focus on these dichotomies of proceduralism and generality "fail[s] to generate the most appropriate distribution of interpretive power." Instead, the authors advocate drawing the line between administrative and judicial power to resolve statutory ambiguities on the basis of the position and authority of the agency actor who makes the decision, rather than the agency's use of formal procedures or the agency's issuance of a generally applicable decision. After providing background on the administrative law concepts discussed in the article, this report discusses the article itself and provides reactions to and considerations of its propositions. The Administrative Procedure Act (APA) applies to all agencies, including independent regulatory agencies such as the Federal Trade Commission. The APA prescribes procedures for agency actions such as rulemaking and adjudication. Barron and Kagan's Chevron nondelegation theory would shift the applicable type of judicial deference away from a focus on the agency's use of formal procedures, such as those set forth in the APA, or informal procedures. The authors' Chevron nondelegation doctrine would similarly discount whether the rule or order issued by the agency has general applicability or only applies to the particular parties to the proceeding. Agencies issue rules pursuant to delegated authority from Congress. The APA imposes several procedural requirements on the issuance of substantive rules, which are also known as legislative rules. Substantive rules have the force of law and may create new rights or duties. Under a process known as informal or notice-and-comment rulemaking, the APA generally requires that all agencies publish a notice of proposed rulemaking in the Federal Register , after which interested persons and the public may submit comments that may affect the resulting final rule. Final rules must be published 30 days before they become effective as substantive rules. However, these requirements do not apply to nonlegislative rules, which include "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice." The procedural distinction between substantive, or legislative, rules and nonlegislative rules underlies the type of deference that a reviewing court may grant the rule at issue. The APA also provides procedures for formal adjudications, which are also referred to as "on the record" hearings. The APA provides that when a statute requires an agency adjudication to be determined "on the record," an Administrative Law Judge (ALJ) or the agency head must preside over the hearing. In general, ALJs hear cases that fall into four different categories: (1) enforcement cases, (2) entitlement cases, (3) regulatory cases, and (4) contract cases. The subject matter of the hearing or proceeding varies among the agencies and includes disability determinations as well as licensing, sanctions, and civil penalty determinations. Informal adjudications do not necessarily apply APA procedures and, as a result, an agency may create its own procedures and use non-ALJ hearing officers to adjudicate disputes before the agency. The Supreme Court has stated that "an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress." With regard to the standards of judicial review of agency action that a court will use to evaluate whether an agency's action is valid, the relevant APA provision for purposes of Barron and Kagan's article states that "[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." This standard of judicial review concerns congressional delegations of legislative authority to administrative agencies. Courts grant varying levels of deference to agency interpretations of statutes when examining questions such as whether an agency's action is in excess of its delegated statutory authority. Judicial deference is the degree to which a court will uphold and respect the validity of an agency's interpretation of a statutory provision during judicial review of the agency's decisions. The amount of deference that an agency interpretation of its own statute will receive from a reviewing court "has been understood to vary with the circumstances." This section briefly outlines two types of deference that a court may accord to an agency's administration of a statutory provision— Chevron (substantial deference) and Skidmore (weak deference)—that Barron and Kagan discuss in their law review article. While the law review article focuses primarily on Chevron deference, it also discusses Skidmore deference in cases where Chevron deference would be inapplicable. Chevron is the leading case on judicial review of agency interpretations of statutes. This case involved the Environmental Protection Agency's rules defining "stationary source" for purposes of nationwide regulation of emissions under the Clean Air Act. In Chevron , the Court enunciated a two-step test for judicial review of an agency's interpretation of its own statute: (1) Has Congress "directly spoken to the precise question at issue?" and (2) if Congress has not done so and "the statute is silent or ambiguous with respect to the specific issue," is the agency's answer "based on a permissible construction of the statute?" Under Chevron step one, if Congress has spoken directly to the question at issue, then Chevron deference is not due and the Court "must give effect to the unambiguously expressed intent of Congress." If Congress's intent is unclear or if Congress is silent, the Court's role at Chevron step two is to defer to any reasonable agency interpretation of the pertinent statutory language. Chevron thus entered the heart of, and continues to factor in, the debate as to whether agencies or courts should address questions of statutory interpretation, when courts should defer to agency interpretations, and what level of deference courts should apply. The 2001 case United States v. Mead Corporation focused on a tariff classification ruling by the Customs Service and held that the ruling "fail[ed] to qualify" for Chevron deference. The Court qualified its decision in Chevron by holding that Chevron deference to an agency's interpretation of an ambiguous statute was "warranted only 'when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation was promulgated in exercise of that authority.'" These threshold determinations of whether Congress delegated authority and whether the agency has exercised its authority to act with the force of law, such as in notice-and-comment rulemaking or formal adjudication, has been referred to as Chevron step zero. The Mead Court held that congressional delegation of authority to an agency to make rules with the force of law "may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent." As the Court had explained earlier in Christensen v. Harris County , policy statements, agency manuals, enforcement guidelines, and interpretive opinion letters do not warrant Chevron -level deference. In the 2002 case Barnhart v. Walton , which was decided after the publication of Barron and Kagan's article, the Court focused on the longstanding nature of the agency's interpretation and found that Chevron deference may apply to agency interpretations reached "through means less formal than 'notice-and-comment' rulemaking." The Barnhart Court pointed to factors that highlighted "the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time." With regard to the level of judicial deference that should be accorded to informal procedures, courts appear to be required to make a "threshold determination: whether to apply the criteria for determining Chevron worthiness from Mead or those from Barnhart ... Thus, Chevron deference appears to depend on whether the court evaluating a particular interpretive procedure favors Mead -style factors or Barnhart -style factors." If the agency's interpretation does not qualify for Chevron deference, it is otherwise "'entitled to respect' only to the extent it has the 'power to persuade'" under the standard of deference set forth in Skidmore v. Swift & Co . If Chevron deference does not apply to the agency's interpretation—such as in cases when the agency interprets a statute that also applies to other agencies or when the agency has issued an opinion letter—"courts ordinarily will give some deference or weight to an agency's interpretation of a statute that it administers."