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"The Origins of Judicial Deference to Executive Interpretation" by Aditya Bamzai (2017)

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What is deference in the context of the administrative state?

Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. The U.S. Supreme Court has developed several forms of deference in reviewing federal agency actions, including Chevron deference, Skidmore deference, and Auer deference. Learn about state-level responses to deference here.

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The Origins of Judicial Deference to Executive Interpretation (2017) is a law review article by law professor Aditya Bamzai that aims to explain where the idea of judicial deference came from, as articulated by the U.S. Supreme Court in Chevron v. Natural Resources Defense Council (1984).[1] He argues that pre-Chevron courts did not require judicial deference to executive interpretations of law.[1] Bamzai says "the proposition that Chevron has a basis in traditional interpretive methodology, the views of the Framers of the United States Constitution, or section 706 of the Administrative Procedure Act should be abandoned."[1]

HIGHLIGHTS
  • Authors: Aditya Bamzai
  • Source: Yale Law Journal, Volume 126, No. 4, February 2017
  • Abstract: Bamzai provided the following abstract for his article:[1]


    "Judicial deference to executive statutory interpretation—a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council—is one of the central principles in modern American public law. Despite its significance, however, the doctrine’s origins and development are poorly understood. The Court in Chevron claimed that the roots of judicial deference stem from statutory interpretation cases dating to the early nineteenth century. Others, by contrast, have sought to locate Chevron’s doctrinal roots in judicial review’s origins in the writ of mandamus. According to the standard narrative, courts in the pre-Chevron era followed a multifactor and ad hoc approach to issues of judicial deference; there was little theory that explained the body of cases; and the holdings and reasoning of the cases were often contradictory and difficult to rationalize.

    This Article challenges the standard account. It argues that the Supreme Court in Chevron, and scholarly commentators since, have misidentified nineteenth-century statutory interpretation cases applying canons of construction 'respecting' contemporaneous and customary interpretation as cases deferring to executive interpretation as such. It further argues that, although the standard for obtaining a writ of mandamus was central to judicial review in the early Republic, statutory developments in the latter half of the nineteenth century (significantly, the enactment of general federal-question jurisdiction in 1875) ultimately mooted the relevance of that standard. Finally, it discusses the intellectual challenges to the traditional interpretive framework beginning in the early twentieth century; the Supreme Court’s embrace of these intellectual challenges in the early 1940s; and Congress’s attempt in the Administrative Procedure Act’s (APA) standard-of-review provision to reject the Court’s interpretive experimentation and corresponding deviation from the traditional canons. The Article thus seeks to establish—contrary to the suggestion in Chevron and recent cases—that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic. And it contends that the governing statute of administrative law—the APA—was intended to codify the traditional interpretive approach and to reject the experimentation of the 1940s Court. Taken together, these conclusions cast doubt on much of the received wisdom on the doctrinal basis for the rule announced in Chevron."[1]

    • Author

    Aditya Bamzai

    Aditya Bamzai became a law professor at the University of Virginia School of Law in 2016.[2] Before joining the law school, Bamzai worked as an attorney-adviser in the U.S. Department of Justice (DOJ) Office of Legal Counsel and as an "attorney in both private practice and for the National Security Division" of the DOJ.[2] He teaches and writes about administrative law, civil procedure, federal courts, national security law, and computer crime.[2]

    The following is a summary of Bamzai's education and professional career:[2]

    "Part I: Judicial Deference at the court and through the lens of history"

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

    The first section of Bamzai's essay analyzes the judicial precedents cited in the U.S. Supreme Court's 1984 Chevron decision.[1] Bamzai argues that since Chevron courts have failed to engage with those precedents and that there is a "corresponding gap in the scholarly treatment of Chevron's origins."[1] He says the Chevron opinion "cited, though it did not analyze, several dozen cases dating back to the Court’s 1827 opinion in Edward’s Lessee v. Darby."[1] He added that many critiques of Chevron from later judges have not addressed those 19th-century cases cited as precedent in the decision.[1]

    “ What is notable about these recent opinions, taken together, is not merely the anti-deference position that they advocate, but also their failure to engage with the nineteenth-century cases on which Chevron relied. To be sure, the Justices have cited Chief Justice Marshall’s directive in Marbury that courts must “say what the law is”; the text of the Vesting Clauses of Articles I and III; James Madison’s and Alexander Hamilton’s statements on the importance of the separation of powers in The Federalist; similar general statements by Montesquieu, William Blackstone, and other pre Founding authors; and the text of section 706 of the APA. But Chevron’s reliance on early nineteenth-century cases raises the possibility that each of these sources can, at the end of the day, be reconciled with the broad principle of judicial deference that the Court believed that it was rearticulating.[1][3] ”

    Turning his attention away from judges, Bamzai says that scholars have also addressed the precedents mentioned in Chevron in an incomplete way.[1] He argues that it is important to figure out what the precedents mean because if there was a strong tradition of judicial deference from the founding of the U.S., then "separation of powers poses no barrier to judicial deference to executive interpretation."[1] Bamzai argues that the Chevron court misinterpreted the precedents that formed the basis of its decision.[1]

    "Part II: The theory and practice of interpretation from the early American republic to the end of the nineteenth century"

    Bamzai defines two neutral rules, called "canons of construction," used by theorists and courts to figure out what statutes mean in cases of ambiguity:[1]

    1) Contemporanea expositio: "reliance on the contemporaneous understanding of a text"

    2) Interpres consuetudo: "reliance on the customary understanding of the text"

    He traces the development of those rules for understanding legal texts from 15th-century England through 19th-century court cases in the United States.[1] The courts that formed the precedents cited in Chevron used both of those approaches and Bamzai argues that examining that history reveals "how nineteenth-century courts viewed the proper relationship between the judicial and executive branches." Courts did not mandate that judges defer to executive interpretations of laws.[1] Instead, courts looked to the time an agency made an interpretation and the stability of that interpretation over time when deciding how to resolve ambiguity, according to Bamzai.[1] He summarizes his argument with the following statement:[1]

    “ Looking from the vantage point of the Framers and early theorists, one can better understand the nineteenth-century cases on which Chevron relied. In particular, these sources highlight that courts’ repeated assertions that certain executive interpretations of legal text should receive 'respect' were in fact applications of the theory that an ambiguous legal text should be given its contemporaneous and customary meaning. The courts’ assertions were, in both constitutional and statutory cases alike, applications of the contemporanea expositio and interpres consuetudo canons, not of judicial deference to the executive as such.[1][3] ”

    Some scholars defend Chevron deference by pointing to judicial precedents dealing with writs of mandamus.[1] Writs of mandamus were orders from courts to government officers that compelled them to perform a mandatory duty. Bamzai argues, "Those cases distinguished between, on the one hand, the standard for obtaining the writ and, on the other, the appropriate interpretive methodology that would be applied in cases not brought using the writ."[1] Courts lacked jurisdiction to review general executive violations of federal law before 1875, so plaintiffs often sought writs of mandamus to address their complaints.[1] Courts deciding whether to issue a writ of mandamus had to see "if the claimant could show that he had a vested right and that the executive official had violated a nondiscretionary, ministerial legal duty."[1] According to Bamzai, that standard imposed a deferential approach to legal ambiguity in cases of discretionary acts that did not apply beyond the mandamus context.[1] In fact, he cites several examples to argue that "in common-law cases, the Court gave de novo review to legal questions" instead of deferring to executive interpretations.[1]

    Bamzai also discusses the distinction between law and fact. When courts approached questions involving interpretations of law, he argues that they applied de novo review while they were more deferential about questions involving particular facts.[1]

    "Part III: The steps to Chevron"

    Bamzai makes the case that courts and scholars abandoned the traditional canons of upholding contemporaneous and customary interpretations of laws over time.[1] He says this happened through the New Deal era as the administrative state grew and new justices joined the U.S. Supreme Court.[1] Bamzai argues that Congress enacted the Administrative Procedure Act (APA) in 1946 as a response to the breakdown of the traditional canons in favor of judicial deference, but that cases from the 1940s and after created conflicting precedents that led to Chevron.[1]

    Bamzai summarized the state of the case law prior to the APA in the following passage:[1]

    “ Leaving to one side the confusion in the case law in the year 1946, the Court’s cases, when set against the backdrop of the historical narrative, clarify a point of wider jurisprudential significance. In the post-Chevron era, it has become de rigueur to compare the bright-line approach seemingly articulated in Chevron (and its predecessors, such as Hearst) with the multifactor and contextual approach articulated by Justice Jackson in Skidmore. But it is possible that a third explanation captures the jurisprudential phenomenon of the 1940s era: both the Hearst and Skidmore standards were alternative twentieth-century attempts by a Court struggling to define the bounds of judicial review of expert decisions by generalist courts—and both are departures from the traditional interpretive methodology and intellectual framework that privileged contemporary and customary interpretations.[1][3] ”

    Bamzai argues that part of the APA "appeared to contemplate some form of de novo review of agency legal interpretation" while Justice Antonin Scalia argued that "Congress enacted section 706 [of the APA] under 'the quite mistaken assumption that questions of law would always be decided de novo by the courts.'”[1] Bamzai makes the case that "the APA’s judicial review provision adopted the traditional interpretive methodology that had prevailed from the beginning of the Republic until the 1940s and, thereby, incorporated the customary-and-contemporary canons of construction."[1] Thus, Bamzai sees the APA as a return to the traditional approach to legal interpretation instead of an endorsement of 1940s court precedent.[1]

    Whatever Congress may have had in mind when it drafted the APA, Bamzai argues that later interpreters assumed that the law endorsed the 1940s multi-factor and contextual approach to judicial review.[1] He said, "Within eight decades—between Justice Harlan’s opinion in 1904 and the Chevron decision in 1984—the true meaning of the cases applying the contemporanea expositio and interpres consuetudo canons had been completely and entirely forgotten" and the "traditional rules of construction, to use Justice Harlan’s words, had finally been 'overthrown.'"[1]

    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 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 Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," 2017
    2. ↑ 2.0 2.1 2.2 2.3 University of Virginia School of Law, "Aditya Bamzai," accessed May 3, 2019
    3. ↑ 3.0 3.1 3.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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    Terms
    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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