"Law and Administration after Chevron" by Cass Sunstein (1990)
| Administrative State |
|---|
|
| Five Pillars of the Administrative State |
| • Judicial deference • Nondelegation • Executive control • Procedural rights • Agency dynamics |
| Click here for more coverage of the administrative state on Ballotpedia |
Law and Administration after Chevron (1990) is a law review article by law professor Cass R. Sunstein defending Chevron deference as a plausible means for allowing the will of democratically accountable, specialized agencies to prevail over relatively unaccountable, generalist judges.[1] He argues that "[d]espite its seemingly technical character, the Chevron principle [...] has altered the fabric of modern public law, influencing an enormous range of substantive outcomes in the process."[1]
Author
Cass R. Sunstein
Cass R. Sunstein is an American legal scholar and professor. As of May 2024, he was the Robert Walmsley University Professor at Harvard Law School. He is also the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. Sunstein served as the administrator of the White House Office of Information and Regulatory Affairs under former President Barack Obama (D) from 2009 to 2012. According to his faculty profile page on the Harvard website, Sunstein's areas of interest include administrative law, constitutional law, environmental law and policy, employment law, labor law, and behavioral law and economics.[2]
Career
Below is a summary of Sunstein's education and career:[2]
Academic degrees:
- A.B. (1975), Harvard University
- J.D. (1978), Harvard Law School
Professional positions and honors:
- Law clerk, Benjamin Kaplan, Massachusetts Supreme Judicial Court, 1978-1979
- Law clerk, Thurgood Marshall, Supreme Court of the United States, 1979-1980
- Attorney-advisor, U.S. Department of Justice, Office of Legal Counsel, 1980-1981
- Faculty, University of Chicago Law School, 1981-2008[3]
- Faculty, Harvard Law School, 2008-2013 - Present[4]
- Administrator, White House Office of Information and Regulatory Affairs, 2009-2012
- Professor, Harvard University, 2013 - Present
"Introduction"
Sunstein writes in the introduction to his article that Chevron (1984) reflects a New Deal-era belief in agency autonomy and has become a "counter-Marbury, for the administrative state" in the way it views the judicial role in the U.S. political system. He explains his point and defines Chevron deference in the following passage:[1]
|
Sunstein argues, "In its allocation of governmental authority and in its production of outcomes in the real world, the importance of [Chevron] far exceeds that of the Supreme Court's more celebrated constitutional rulings on the subject of separation of powers in the 1980s, probably even if all of these are taken together."[1] He defends that idea by listing policy areas shaped by Chevron and concluding that Chevron "altered the distribution of national powers among courts, Congress, and administrative agencies."[1]
"Part I: Courts, Administration, and the New Deal"
Pre-Chevron balancing between the rule of law and agency discretion
Sunstein begins this section of his article by describing the potential "tension between law and administration" before examining "various efforts by courts to mediate that tension in the wake of the New Deal."[1] He argues that the Administrative Procedure Act (APA), passed in 1946, "was a compromise between New Dealers enthusiastic about administrative power and conservative critics who saw this power as a veil for tyranny, particularly in the context of labor relations."[1] The section of the APA detailing judicial review instructs judges to decide all relevant questions of law and interpret constitutional and statutory provisions.[1] However, as early as 1956, Sunstein said that courts began deferring to agencies when they made reasonable interpretations of statutes they administered.[1]
Sunstein disagrees with former U.S. Supreme Court Justice Antonin Scalia about whether the 1941 report issued by the Attorney General's Committee on Administrative Procedure means that the APA sanctioned judicial deference.[1] Sunstein argues that the text of the APA and its legislative history are more important to understanding the law and that those sources argue for independent judicial review of agency interpretations.[1]
He ends the first portion of Part I by arguing that before Chevron "the law thus reflected a puzzling and relatively ad hoc set of doctrines about when courts should defer to administrative interpretations of law."[1] Sunstein says that the New Deal alliances reversed in the 1980s; critics of regulation insisted on autonomy for administrative agencies while those who supported regulation sought judicial constraints on the bureaucracy to ensure that agencies carried out the will of Congress.[1]
Chevron changes deference rules
Sunstein defended the U.S. Supreme Court's decision in Chevron saying, "The agency's fact-finding and policy-making competence, and its electoral accountability, were highly relevant to the issue" and that "the Court quite rightly implied that any principle of deference is a product of Congress's explicit or implicit instructions on that question."[1] For Sunstein, Chevron deference should apply when Congress delegates power to agencies to define terms within a statute.[1] He argues that when Congress does not speak clearly to a particular situation when it drafts legislation it leaves room for agency action during the implementation of the law. Resolving such ambiguities requires "considerations of both fact and policy" and "[s]ometimes congressional views cannot plausibly be aggregated in a way that reflects a clear resolution of regulatory problems," according to Sunstein.[1] He says this change in the law reflected a shift in the U.S. federal government that occurred throughout the 20th century:[1]
|
He suggests in a footnote that the fact that the Republican Party controlled the executive branch while the Democratic Party controlled Congress during the debate over Chevron in the 1980s affected how much some judges wanted to defer to agency decisions.[1]
Sunstein says that one defense of Chevron holds that when regulatory decisions amount to choices of policy because of legal ambiguity, then "if Congress has delegated basic implementing authority to the agency, the Chevron approach might reflect a belief, attributable to Congress in the absence of a clear contrary legislative statement, in the comparative advantages of the agency in making those choices."[1] One of the advantages Sunstein lists is that agencies can respond to new technologies and overlapping statutory mandates in a way that is more flexible than courts deciding one particular case at a time.[1] Another benefit that Sunstein says could come from judicial deference is that it might "increase Congress's incentive to provide specific guidance to administrators and simultaneously reduce the amount of regulatory litigation, its attendant costs, and the potential balkanization of federal law in a highly decentralized court system."[1] Even if Congress did not intend for every legal ambiguity to be a delegation of authority to agencies, Sunstein argues that the Chevron principle is reasonably clear and "perhaps as accurate as any bright-line alternative."[1]
"Part II: Chevron's Reach"
In this section of the article, Sunstein aims to resolve unanswered questions raised by Chevron regarding the distribution of power between courts, Congress, and agencies.[1] He makes the following comment as a response to how far Chevron stretches:[1]
|
This part of the article analyzes the following points:[1]
- How ambiguous a statute must be to trigger Chevron deference Sunstein concludes that "the mere fact of a plausible agency view is insufficient for deference" and that any interpretive approach must recognize "the primacy of legislative instructions over administrative will."[1]
- Limiting Chevron's application to legislative rules Sunstein argues that if Chevron is based on the idea that reasonable exercises of implementing power by agencies are entitled to respect from judges, then "deference does not extend to interpretations by agencies that have not been granted the authority to interpret the law."[1] For example, Sunstein says that agencies with the power to prosecute violations should not receive deference under Chevron, which is reserved for agencies exercising delegated rulemaking authority.[1] He argued that this limitation of Chevron also excludes defenses of agency actions first made by agency lawyers during litigation.[1]
- How to treat questions of law versus applying the law to facts Sunstein argues that the traditional legal distinction between pure questions of law and mixed questions of applying the law to facts is in tension with Chevron.[1] He argues that courts should probably defer to agencies in both cases "unless there is some independent reason for distrusting the agency."[1]
- Cases involving agencies' specialized competence Sunstein argues, "Deference is due when a matter within the agency's competence is at issue; courts should review agency decisions independently when it is not."[1] However, since deciding whether the agency or the court is more competent in every case would be a complicated process, Sunstein says a better approach to applying Chevron would be to focus on general exceptions to deference principles.[1]
- Deference and agency jurisdiction Sunstein says that Chevron does not resolve whether agencies have the power to decide their own jurisdictions.[1] He says probably "the best reconciliation of the competing considerations of expertise, accountability, and partiality is to say that no deference will be accorded to the agency when the issue is whether the agency's authority extends to a broad area of regulation, or to a large category of cases, except to the extent that the answer to that question calls for determinations of fact and policy."[1] See also: City of Arlington v. FCC (2013)
- Deference and agency bias Sunstein argues that independent judicial review is "appropriate in other contexts involving predictable bias, most notably jurisdictional determinations, but also in other cases in which the agency's self-interest is conspicuously at stake."[1]
- Deference and changing agency views When agencies change their interpretation of ambiguous statutes in the face of changing circumstances it undermines the traditional argument for deference in cases of longstanding and consistent policy.[1] Sunstein argues that "agencies should be allowed to depart from interpretations by prior administrations, certainly in the face of changed conditions, but also to reflect new views about policy" as long as the new interpretation is a reasonable application of the relevant law.[1]
- The reasonableness of agency interpretation Sunstein concludes part II of his article saying that judges should give agencies latitude when evaluating the reasonableness of agency interpretations of statutes.[1] He suggests using the arbitrary-or-capricious test as the U.S. Supreme Court articulated in Motor Vehicle Mfrs. Ass'n v. State Farm (1983).[1]
"Part III: Interpretive Principles"
In this section of the article, Sunstein discusses how the principle of deference articulated in Chevron interacts with other established interpretive principles.[1] He gives the following conclusion before revealing the details of his argument:[1]
|
The following list includes some of the legal principles Sunstein discusses:[1]
- That specific legal provisions trump general ones when there is a conflict
- That judges will give effect to every word in a statute
- That judges will construe statutes to be valid instead of invalid
- That judges will presume that judicial review of agency actions is available
- That judges will interpret statutes so that they do not apply retroactively
"Part IV: Conclusion"
Sunstein ends his article with the following statement:[1]
|
See also
- Ballotpedia's administrative state coverage
- Separation of powers
- Chevron deference (doctrine)
- Administrative Procedure Act
- Judicial deference: a timeline
- Taxonomy of arguments about judicial deference
- Scholarly work related to judicial deference to administrative agencies
Court cases:
- Mistretta v. United States
- Heckler v. Chaney
- Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc.
- Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company
- Immigration and Naturalization Service (INS) v. Chadha
- Chevron v. Natural Resources Defense Council
- Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council
- Universal Camera Corporation v. National Labor Relations Board
- A.L.A. Schechter Poultry Corp. v. United States
- Crowell v. Benson
- Myers v. United States
- Field v. Clark
- Marbury v. Madison
Full text
Footnotes
- ↑ 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 1.16 1.17 1.18 1.19 1.20 1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 1.29 1.30 1.31 1.32 1.33 1.34 1.35 1.36 1.37 1.38 1.39 1.40 1.41 1.42 1.43 1.44 1.45 1.46 1.47 1.48 1.49 1.50 Columbia Law Review, Law and Administration after Chevron," 1990
- ↑ 2.0 2.1 Harvard Law School, "CASS R. SUNSTEIN," accessed August 16, 2019
- ↑ University of Chicago, "Professor Cass R. Sunstein," accessed January 31, 2018
- ↑ Chicago Tribune, "Harvard hires U. of C. law professor Cass Sunstein," February 20, 2008
- ↑ 5.0 5.1 5.2 5.3 5.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
