Volume 70, Number 5 – February 2021

Article

Narrowing Chevron’s Domain
Kristin E. Hickman & Aaron L. Nielson
PDF

Chevron deference has become increasingly controversial. Some Justices on the Supreme Court have stated that they would overrule Chevron, and others have urged that it be curtailed. If Chevron were merely modified rather than overturned, it is unclear what that modified Chevron would look like. This Article argues that the time has come to narrow Chevron’s domain by limiting Chevron deference to interpretations announced in rulemaking and not those announced in adjudication.

Under the classic formulation of Chevron, a court should defer to an agency’s reasonable interpretation of ambiguous statutory language. This formulation is grounded in the notion that Congress, at least implicitly, signals a preference for agency rather than judicial decisionmaking when it delegates broad policymaking discretion as part of charging an agency with implementing and administering a statute. In United States v. Mead Corp., the Supreme Court began defining what has come to be known as Chevron’s domain—holding that Congress did not intend courts to defer to every agency resolution of statutory ambiguity, but rather only to those articulated in agency actions that carry legal force and thus reflect the exercise of delegated power. As a consequence of the Mead Court’s analysis, courts typically defer under the Chevron standard to interpretations offered in notice-and-comment rulemakings and in formal adjudications, and apply the less deferential Skidmore standard in reviewing those advanced through less formal formats like interpretative rules and policy statements. Meanwhile, interpretations announced via informal adjudications represent a gray area for Mead’s analysis.

With the benefit of hindsight, we believe that Mead did not go far enough in curtailing Chevron’s reach. Applying Chevron to interpretations announced through adjudication has proven problematic in practice and has fueled a great deal of the anti-Chevron criticism. Meanwhile, Chevron’s claim to stare decisis in the context of adjudications is surprisingly weak. Using a novel dataset of cases, this Article shows that the Supreme Court has applied Chevron only rarely in evaluating agency adjudications. We submit that this relative dearth of precedent is best explained by the fact that Chevron makes the most conceptual sense when applied to agency rulemakings. Accordingly, if the Court is looking for a way to address deference short of eliminating it, the soundest way to revisit Chevron is by narrowing its domain to exclude most if not all agency adjudications.

Foreword

The Future of Chevron Deference
Kristin E. Hickman & Aaron L. Nielson
PDF

Symposium Articles

Retheorizing Precedent
Randy J. Kozel
PDF

Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?

Congress’s Domain: Appropriations, Time, and Chevron
Matthew B. Lawrence
PDF

Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.

The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize the time and procedural steps an agency put into an interpretation would tend to favor deference for agency interpretations of permanent appropriations, but not for annual appropriations. Yet this result is upside-down if courts’ goal is to promote accountability and avoid interference with the balance of power between the political branches. Chevron has two core functions, a subdelegation function (it transfers the authority delegated in ambiguities from courts to agencies) and an anti-entrenchment function (it relieves interpretations of the solidifying force of stare decisis). As applied to annual appropriations, both functions respect Congress’s primary role in enforcement through the appropriations cycle; as applied to permanent appropriations, both functions interfere with Congress’s domain.

Courts that evaluate Chevron for appropriations without acknowledging and addressing the elemental difference between annual appropriations and permanent appropriations interfere with the political branches and frustrate Congress’s expectations. Courts should adopt a bifurcated approach to Chevron for appropriations that disfavors deference for permanent appropriations provisions, but not for annual appropriations provisions. This Article suggests how the distinction between annual and permanent appropriations may be relevant to the incorporation of appropriations into other aspects of administrative law doctrine, including legislative standing, reviewability, and nondelegation.

Chevronizing Around Cost-Benefit Analysis
Jonathan S. Masur & Eric A. Posner
PDF

The Trump administration’s efforts to weaken regulations were in tension with cost-benefit analysis, which in many cases supported those regulations or otherwise failed to support the administration’s deregulatory objectives. Rather than attempting to justify its actions as a matter of policy preferences, the administration responded on multiple occasions by using Chevron to interpret statutes so as to evade cost-benefit analysis. The statutory interpretation route, which we call “Chevronizing” around cost-benefit analysis, created novel challenges for courts, as it pitted traditional Chevron deference against a trend in favor of requiring agencies to regulate based on cost-benefit analysis as a matter of sound public policy. This Article evaluates these efforts and concludes that in many of these cases, the Trump administration’s attempts to leverage Chevron deference as a weapon against cost-benefit analysis—and sensible policymaking—exposed it to significant legal risk. We expect that courts will reject several of these efforts if they are ever adjudicated. In the process, the Trump administration’s machinations may have had the effect of contorting how future courts apply Chevron deference and how future administrations deploy it.

Re-Reading Chevron
Thomas W. Merrill
PDF

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine—and with it, an entire branch of administrative law—on firmer footing.

The Case Against Chevron Deference in Immigration Adjudication
Shoba Sivaprasad Wadhia & Christopher J. Walker
PDF

The Duke Law Journal ’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron’s theory for congressional delegation and judicial deference—including agency expertise, deliberative process, and even political accountability—collapses in the immigration adjudication context.

As for potential reform, Professors Hickman and Nielson understandably focus on the Supreme Court. This Article also explores that judicial option but argues that it is a mistake to focus just on courts when it comes to immigration law and policy. The political branches can and should act to narrow Chevron’s domain. First, this proposal should be part of any comprehensive immigration reform legislation. Second, the Executive Branch can and should embrace this reform internally—by not seeking Chevron deference in immigration adjudication and by turning to rulemaking instead of adjudication to make major immigration policy. Shifting the immigration policymaking default from adjudication to rulemaking is more consistent with Chevron’s theoretical foundations—to leverage agency expertise, to engage in a deliberative process, and to increase political accountability.

Volume 70, Number 5 – February 2021

Article

Narrowing Chevron’s Domain
Kristin E. Hickman & Aaron L. Nielson
PDF

Chevron deference has become increasingly controversial. Some Justices on the Supreme Court have stated that they would overrule Chevron, and others have urged that it be curtailed. If Chevron were merely modified rather than overturned, it is unclear what that modified Chevron would look like. This Article argues that the time has come to narrow Chevron’s domain by limiting Chevron deference to interpretations announced in rulemaking and not those announced in adjudication.

Under the classic formulation of Chevron, a court should defer to an agency’s reasonable interpretation of ambiguous statutory language. This formulation is grounded in the notion that Congress, at least implicitly, signals a preference for agency rather than judicial decisionmaking when it delegates broad policymaking discretion as part of charging an agency with implementing and administering a statute. In United States v. Mead Corp., the Supreme Court began defining what has come to be known as Chevron’s domain—holding that Congress did not intend courts to defer to every agency resolution of statutory ambiguity, but rather only to those articulated in agency actions that carry legal force and thus reflect the exercise of delegated power. As a consequence of the Mead Court’s analysis, courts typically defer under the Chevron standard to interpretations offered in notice-and-comment rulemakings and in formal adjudications, and apply the less deferential Skidmore standard in reviewing those advanced through less formal formats like interpretative rules and policy statements. Meanwhile, interpretations announced via informal adjudications represent a gray area for Mead’s analysis.

With the benefit of hindsight, we believe that Mead did not go far enough in curtailing Chevron’s reach. Applying Chevron to interpretations announced through adjudication has proven problematic in practice and has fueled a great deal of the anti-Chevron criticism. Meanwhile, Chevron’s claim to stare decisis in the context of adjudications is surprisingly weak. Using a novel dataset of cases, this Article shows that the Supreme Court has applied Chevron only rarely in evaluating agency adjudications. We submit that this relative dearth of precedent is best explained by the fact that Chevron makes the most conceptual sense when applied to agency rulemakings. Accordingly, if the Court is looking for a way to address deference short of eliminating it, the soundest way to revisit Chevron is by narrowing its domain to exclude most if not all agency adjudications.

Foreword

The Future of Chevron Deference
Kristin E. Hickman & Aaron L. Nielson
PDF

Symposium Articles

Retheorizing Precedent
Randy J. Kozel
PDF

Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?

Congress’s Domain: Appropriations, Time, and Chevron
Matthew B. Lawrence
PDF

Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.

The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize the time and procedural steps an agency put into an interpretation would tend to favor deference for agency interpretations of permanent appropriations, but not for annual appropriations. Yet this result is upside-down if courts’ goal is to promote accountability and avoid interference with the balance of power between the political branches. Chevron has two core functions, a subdelegation function (it transfers the authority delegated in ambiguities from courts to agencies) and an anti-entrenchment function (it relieves interpretations of the solidifying force of stare decisis). As applied to annual appropriations, both functions respect Congress’s primary role in enforcement through the appropriations cycle; as applied to permanent appropriations, both functions interfere with Congress’s domain.

Courts that evaluate Chevron for appropriations without acknowledging and addressing the elemental difference between annual appropriations and permanent appropriations interfere with the political branches and frustrate Congress’s expectations. Courts should adopt a bifurcated approach to Chevron for appropriations that disfavors deference for permanent appropriations provisions, but not for annual appropriations provisions. This Article suggests how the distinction between annual and permanent appropriations may be relevant to the incorporation of appropriations into other aspects of administrative law doctrine, including legislative standing, reviewability, and nondelegation.

Chevronizing Around Cost-Benefit Analysis
Jonathan S. Masur & Eric A. Posner
PDF

The Trump administration’s efforts to weaken regulations were in tension with cost-benefit analysis, which in many cases supported those regulations or otherwise failed to support the administration’s deregulatory objectives. Rather than attempting to justify its actions as a matter of policy preferences, the administration responded on multiple occasions by using Chevron to interpret statutes so as to evade cost-benefit analysis. The statutory interpretation route, which we call “Chevronizing” around cost-benefit analysis, created novel challenges for courts, as it pitted traditional Chevron deference against a trend in favor of requiring agencies to regulate based on cost-benefit analysis as a matter of sound public policy. This Article evaluates these efforts and concludes that in many of these cases, the Trump administration’s attempts to leverage Chevron deference as a weapon against cost-benefit analysis—and sensible policymaking—exposed it to significant legal risk. We expect that courts will reject several of these efforts if they are ever adjudicated. In the process, the Trump administration’s machinations may have had the effect of contorting how future courts apply Chevron deference and how future administrations deploy it.

Re-Reading Chevron
Thomas W. Merrill
PDF

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine—and with it, an entire branch of administrative law—on firmer footing.

The Case Against Chevron Deference in Immigration Adjudication
Shoba Sivaprasad Wadhia & Christopher J. Walker
PDF

The Duke Law Journal ’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron’s theory for congressional delegation and judicial deference—including agency expertise, deliberative process, and even political accountability—collapses in the immigration adjudication context.

As for potential reform, Professors Hickman and Nielson understandably focus on the Supreme Court. This Article also explores that judicial option but argues that it is a mistake to focus just on courts when it comes to immigration law and policy. The political branches can and should act to narrow Chevron’s domain. First, this proposal should be part of any comprehensive immigration reform legislation. Second, the Executive Branch can and should embrace this reform internally—by not seeking Chevron deference in immigration adjudication and by turning to rulemaking instead of adjudication to make major immigration policy. Shifting the immigration policymaking default from adjudication to rulemaking is more consistent with Chevron’s theoretical foundations—to leverage agency expertise, to engage in a deliberative process, and to increase political accountability.