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"Judicial Deference to Administrative Interpretations of Law" by Antonin Scalia (1989)

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Judicial Deference to Administrative Interpretations of Law (1989) is a lecture delivered by former U.S. Supreme Court Justice Antonin Scalia and later printed by the Duke Law Journal. In the lecture, Scalia defended the concept of Chevron deference, which compels federal courts to defer to federal agencies' interpretations of ambiguous or unclear statutes. He argued that the U.S. Supreme Court's decision in Chevron v. NRDC (1984) improved the way courts approached ambiguities in the law that Congress left up to agency administration.[1]

HIGHLIGHTS
  • Authors: Antonin Scalia
  • Source: Duke Law Journal, Volume 1989, No. 3, June 1989
  • Abstract: Scalia provided the following introduction to his argument in an early part of his lecture:[1]


    "Chevron has proven a highly important decision-perhaps the most important in the field of administrative law since Vermont Yankee Nuclear Power Corp. v. NRDC. In the first three and a half years after its announcement-up to the beginning of 1988-Chevron was cited by lower federal courts over 600 times. Chevron has been a source of lively debate on my own Court, centering largely on the question whether it applies with full force (as I believe it does) when the controversy involves a 'pure question of statutory construction.' In a case in which Justice Kennedy did not participate last Term, this question equally divided the eight remaining members of the Court. Because Justice Stevens is not here to reply, it would be unfair of me to address that particular issue, but I do want to explore with you the general theoretical underpinnings of Chevron and some of its practical implications."[1]

    • Antonin Scalia

    Antonin Gregory Scalia was the 103rd justice to sit on the Supreme Court of the United States. Republican President Ronald Reagan appointed him to the court on June 24, 1986. Scalia was the first Italian-American to be confirmed to the Supreme Court.[2][3][4]

    Scalia graduated first in his class and summa cum laude with a B.A. from Georgetown College (Georgetown University) in 1957. Scalia went on to study law at Harvard, where he was a notes editor for the Harvard Law Review. He graduated magna cum laude from Harvard Law with an LL.B. in 1960, becoming a Sheldon Fellow of Harvard University the following year.[5][6]

    Professional career

    • 1986-2016: Justice, Supreme Court of the United States
    • 1982-1986: Justice, District of Columbia Court of Appeals
    • 1982-1983: Chair, American Bar Association Conference of Section Chairmen
    • 1981-1982: Chair, American Bar Association Section of Administrative Law
    • 1977-1982: Professor, University of Chicago Law School
    • 1974-1977: Assistant attorney general, Office of Legal Counsel
    • 1971-1972: General counsel, Office of Telecommunications Policy
    • 1972-1974: Chair, Administrative Conference of the United States
    • 1967-1971: Professor of Law, University of Virginia
    • 1961-1967: Attorney, Jones, Day, Cockley and Reavis


    Scalia began his legal career at Jones, Day, Cockley and Reavis in Cleveland, Ohio, where he worked from 1961 to 1967.[6] In 1967, he became a professor of law at the University of Virginia.[6] He entered public service in 1971, working as the general counsel for the Office of Telecommunications Policy under President Richard Nixon.[6] From 1972 to 1974, Scalia was the chair of the Administrative Conference of the United States.[6] Following that, Scalia served from 1974 to 1977 in the Ford administration as the assistant attorney general for the Office of Legal Counsel.[6]

    Following President Ford's defeat by Jimmy Carter, Scalia returned to academia, first at the University of Chicago Law School from 1977 to 1982.[6] He went on to serve as visiting professor of law at Georgetown University Law Center and teach at Stanford University.[6] Scalia was chair of the American Bar Association's Section of Administrative Law in 1981 and 1982 and its Conference of Section chair in 1982 and 1983.[6][7]

    "Judicial Deference to Administrative Interpretations of Law"

    See also: Chevron v. Natural Resources Defense Council and Chevron deference (doctrine)

    Chevron did not make new law

    Scalia argued that the decision in Chevron was not a radical departure from established law. He said, "It should not be thought that the Chevron doctrine-except in the clarity and the seemingly categorical nature of its expression-is entirely new law."[1] He added, "To the contrary, courts have been content to accept 'reasonable' executive interpretations of law for some time."[1] He supported his argument by citing a description of judicial review of agency action written fifty years earlier by the committee whose work led to the Administrative Procedure Act, which said that courts may accept reasonable agency interpretations of statutes.[1]

    Chevron resolved a dispute about how judges should approach ambiguity

    Scalia defended Chevron by arguing that the decision in Chevron chose between "two conflicting lines of decision" in U.S. Supreme Court history.[1] One set of decisions, endorsed in Chevron, held that "great deference must be given to the decisions of an administrative agency applying a statute to the facts and that such decisions can be reversed only if without rational basis."[1] The other set of decisions sanctioned the "free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term."[1]

    Chevron improved the way courts approach ambiguous laws

    Scalia argued that Chevron's resolution of that debate in the law was preferable to the status quo in the following passage:[1]

    “ In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn't think about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.


    If that is the principal function to be served, Chevron is unquestionably better than what preceded it. Congress now know that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known. The legislative process becomes less of a sporting event when those supporting and opposing a particular disposition do not have to gamble upon whether, if they say nothing about it in the statute, the ultimate answer will be provided by the courts or rather by the Department of Labor.[1][8]

    		”

    Scalia went on to say that Chevron's approach, which recognizes several possible meanings of a statute instead of "one, permanent, 'correct' meaning" permits "needed flexibility, and appropriate political participation, in the administrative process."[1] Under Chevron, agencies are free to change their interpretive approach to statutes in light of changing facts or political pressures as long as they remain within the bounds of reason.[1] Without Chevron, courts would resolve statutory ambiguities forever until Congress passed a new law to make a change.[1] Scalia argued:[1]

    “ If Congress is to delegate broadly, as modem times are thought to demand, it seems to me desirable that the delegee be able to suit its actions to the times, and that continuing political accountability be assured, through direct political pressures upon the Executive and through the indirect political pressure of congressional oversight. All this is lost if 'new' or 'changing' agency interpretations are somehow suspect.[1][8] ”

    See also

    Court cases:

    Full text

    Footnotes

    1. ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 Duke Law Journal, "Judicial Deference to Administrative Interpretations of Law," 1989
    2. ↑ Federal Judicial Center, "Antonin Scalia," accessed May 20, 2015
    3. ↑ The Supreme Court Historical Society, "Justice Antonin Scalia," accessed May 13, 2014
    4. ↑ Real Clear Politics, "First Italian justice: Antonin Scalia," May 22, 2012
    5. ↑ The New Yorker, "Supreme confidence," March 28, 2005
    6. ↑ 6.0 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 CNN.com, "Antonin Scalia fast facts," September 13, 2014
    7. ↑ Tulane University Law School, "Summer Abroad," accessed May 13, 2014
    8. ↑ 8.0 8.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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    Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
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