Abstract
This report on the U.S. law governing judicial deference to decisions by administrative officials argues that there may be a number of reasons why courts may determine as a matter of fact that aspects concerning the making of an administrative decision—including the administrator’s expertise and experience in technical or scientific matters, the administration’s consistency in similar matters, or the care with which the administration justifies its action—warrant some degree of deference to the administrative decision. But the most widely applicable and important type of judicial deference in U.S. law is required as a matter of law in order to preserve the meaningfulness of the zone of discretion which the legislature is normally understood to have delegated to administrative agencies when they are given adjudicative or rulemaking power. These doctrines of de jure judicial deference, the most celebrated of which is Chevron deference, are part of the American system of rather broad diffusion of powers of governance, a pattern that includes but is not limited to the American versions of separation of powers and federalism. Substantial judicial deference to administrative agencies is thus of particular importance to U.S. law because it is part of the system of divided powers that we have in the United States, which is in turn part of the broader pattern of a strongly market-centered (that is, not state-centered) political economy.
An earlier version of this report has been published in 66 (Supp.) AM. J. COMP. L. 269–98 (2018). The author gratefully acknowledges the research assistance of Iowa law students Bingqing He, Steven Keely, and Todd Skauge on this paper.
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Notes
- 1.
A split in the circuit courts is generally one of the strongest arguments to persuade the Supreme Court to review a Court of Appeals decision, but it is no guarantee of Supreme Court review.
- 2.
The appointment and nomination clauses are in Article II, Section 2[2]. The written opinion clause is in Article II, Section 2[1].
- 3.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803) (heads of departments may be “political or confidential agents of the executive”).
- 4.
Only Congress can authorize the formation of a new agency. An agency has power only to the extent that Congress delegates powers directly to the agency or the agency receives a subdelegation of power that Congress gave to the President or another agency. Congress shares its power over the agency’s budget with the President.
- 5.
Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) (invalidating one- or two-house vetoes of agency regulations).
- 6.
Administrative Procedure Act § 1(7), 5 U.S.C. § 551(7) (2012) [hereinafter “APA § 551(7)”].
- 7.
APA §551(5).
- 8.
See, e.g., infra, note 26 (quoting Supreme Court in Overton Park).
- 9.
The reference to “law” seems to be an inelegant doubling of the legality standards in other subsections. Arbitrary or capricious exercise of delegated powers would seem to be a type of abuse of discretion.
- 10.
See, e.g., quotation from State Farm in text at note 28, infra.
- 11.
Levin (1990).
- 12.
Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 474 (2001) (citing with approval cases from 1935 to 1991 accepting as delegation standards regulating “in the public interest” or similarly broad standards, and rejecting delegation doctrine challenge to a law authorizing the EPA to set “ambient air quality standards the attainment and maintenance of which in the judgment of the [head of the EPA], based on [the] criteria [set out in another section] and allowing an adequate margin of safety, are requisite to protect the public health”).
- 13.
For example, the Justice Department’s decision not to prosecute a party for a violation of the Sherman Antitrust Act does not shield that party as a matter of law from prosecution by private parties seeking treble damages under that statute.
- 14.
Agencies are free to make policy and law either through rulemaking or adjudications. True rules are made only through rulemaking, APA § 551(5). But agencies have to justify their decisions in adjudication by reference to norms of general applicability, and when an agency formulates such a norm in the course of setting forth its justification, that norm becomes binding in the sense that the agency can deviate from that norm in subsequent cases only if it can provide a good reason for the change based in law and generally applicable policy. Shaw’s Supermarkets, Inc. v. N.L.R.B., 884 F.2d 34 (1st Cir. 1989). A legal norm articulated in this way is not the equivalent of a rule but it has a certain normative force, so we typically speak of that kind of norm as a form of agency lawmaking. But this consistency norm may not apply to all types of informal adjudication.
- 15.
Pierce (2010), 2:§ 11.2, at 979 (“among the most stable and satisfactory features of our system”).
- 16.
Id. 2:§ 11.2, at 976–79.
- 17.
Chen v. Mukasey, 510 F.3d 797, 801 (8th Cir. 2007).
- 18.
Id.
- 19.
Singh v. Gonzales, 495 F.3d 553, 557–558 (8th Cir. 2007) (quoted in Chen v. Mukasey, 510 F.3d 797, 802 (8th Cir. 2007)).
- 20.
Pierce (2010), 2:§ 11.2 at 980 (quoting Consolo v. Federal Maritime Commn, 383 U.S. 607, 619–21 (1966)).
- 21.
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), quoted in Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).
- 22.
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487 (1951).
- 23.
Pierce (2010), 2:§ 11.4 at 1020–22.
- 24.
Association of Date Processing Service Organizations, Inc. v. Board of Governors of the Federal Reserve System, 745 F.2d 677, 683 (D.C. Cir. 1984).
- 25.
Id. at 685–86.
- 26.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–416 (1971) (also saying that the standard requires “a substantial inquiry,” though the agency is “entitled to a presumption of regularity,” but the “court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment”).
- 27.
463 U.S. 29 (1983).
- 28.
Id. at 43 (citations omitted). The Court says the governing issue in the case is whether the agency action is arbitrary and capricious even though the applicable statute required that agency findings be supported by “substantial evidence on the record considered as a whole. …” Id. at 44.
- 29.
The Department of Transportation acted through its delegate the National Highway Traffic Safety Administration.
- 30.
Id. at 48.
- 31.
See, e.g., Pierce (1995).
- 32.
National Customs Brokers & Forwarders Assn. of America, Inc. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989) (cited with approval in Massachusetts v. EPA, 549 U.S. 497, 527–528 (2007)). See also State Farm, 463 U.S. at 41(standard for reviewing agency refusals to undertake rulemaking normally “considerably narrower than the traditional arbitrary-and-capricious test”).
- 33.
Id. at 42.
- 34.
Professional Pilots Federation v. FAA, 118 F.3d 758, 763 (D.C. Cir. 1997) (upholding FAA rejection of petition to revise rule prohibiting commercial pilots from flying after age 60 where FAA rejection based on the view that there was no known measure to distinguish pilots who present a danger to air travel because of aging from those who do not).
- 35.
Id. But hard look review does not seem very strict in this case. The court upheld the FAA even though it admitted that age 60 was arbitrarily selected as the cut-off and its age-60 rule prevented the gathering of any evidence about flight-worthiness of pilots over that age that might be used to challenge the rule. In this case, safety concerns apparently outweighed strict requirements for supporting evidence.
- 36.
467 U.S. 837 (1984).
- 37.
Id. at 842–843.
- 38.
Id. at 843 n.9.
- 39.
Id. at 844.
- 40.
See, e.g., N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111 (1944).
- 41.
467 U.S. at 865 (“Perhaps [Congress] consciously desired the [agency] to strike the balance [among conflicting policy goals] at this level [of specificity posed by the case], thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; … it matters not … .”).
- 42.
Courts and commentators have, for example, debated whether the two steps in the Chevron test are really distinct, see, e.g., Energy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009) (majority and dissent disagreeing); Stephenson and Vermeule (2009).
- 43.
See, e.g., Arendt v. Shalala, 70 F.3d 610 (D.C. Cir. 1995) (Edwards, C.J., applies hard look for court; Wald, J., concurring, would apply Chevron Step Two).
- 44.
See, e.g., Schuck and Elliott (1990).
- 45.
Kerr (1998) (in 1995 and 1996, agency interpretations upheld 73% of the time; of all those decisions rejecting the agency’s interpretation, 59% failed Step One, 18% failed Step Two, and 23% failed a general test of reasonability, conflating Steps One and Two).
- 46.
- 47.
Among other factors, in the United States, unlike in parliamentary systems or systems with much stronger executive branches, legislation does not tend to originate in the executive branch or the administrative bureaucracy, which might be expected to produce drafts that more coherently reflect the executive branch policy. Rather, in the U.S., it tends to be the result of drafting efforts by multiple congressional committees, including the lobbyists who seek to influence them.
- 48.
E.g., Werhan (1992).
- 49.
- 50.
Students tend to object that this test should be called “Chevron Step 1.5” since it logically comes after Step One and before Step Two, but the literature tends to use the term “Step Zero.”
- 51.
533 U.S. 218 (2001).
- 52.
Id. at 226–227.
- 53.
Id. at 230.
- 54.
Id. at 230 & n. 11 (quoting Merrill and Hickman 2001).
- 55.
Goldsmith and Manning (2006).
- 56.
533 U.S. at 231 (citing NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251 (1995)). In Mead, the Court also says that interpretive rules “enjoy no Chevron status as a class.” 533 U.S. at 232. Interpretive rules are exempt from notice and comment rulemaking. APA § 553 (b) (A), so the Court’s statement would seem consistent with the idea that Chevron deference is reserved for agency actions that comply with the relatively more formal levels of process required by the APA. However, in Barnhart v. Walton, 535 U.S. 212 (2002) (applying Chevron deference to Social Security Administration interpretations found in many informal agency rulings and manuals over many years), the Court seemed to contradict that position by giving Chevron deference to long-standing interpretive rules.
- 57.
Agencies do this most clearly by making legislative rules because they have the force of law unless and until they are invalidated on judicial review. For the explanation of how agencies make law in adjudications, especially ones done under formal process, see note 14 supra.
- 58.
See, e.g., Gonzales v. Oregon, 546 U.S. 243 (2006).
- 59.
FDA v. Brown & Williamson Tobacco Corp. 529 U.S. 120, 159 (2000) (emphasis added).
- 60.
134 S. Ct. 2480, 2489 (2015) (citing Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014), which in turn was quoting Brown & Williamson, 529 U.S. at 160).
- 61.
See, e.g., City of Arlington, Texas v. F.C.C., 569 U.S. 290 (2013) (Roberts, C.J. and Alito and Kennedy, JJ., dissenting); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–1158 (10th Cir. 2016) (Gorsuch, J., concurring).
- 62.
- 63.
Separation of Powers Restoration Act of 2017, H.R. 76, 115th Cong. (2017); Separation of Powers Restoration Act of 2016, H.R. 4768, 114th Cong. (2016).
- 64.
Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (pre-APA case).
- 65.
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Seminole Rock, 325 U.S. at 414).
- 66.
See, e.g., Thomas Jefferson University, 512 U.S. at 525 (Thomas, J., dissenting); U.S. v. Mead Corp., 533 U.S. 218, 246 (2001) (Scalia, J., dissenting); Manning (1996).
- 67.
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015) (separate concurring opinions by Alito, Scalia, and Thomas, JJ.)
- 68.
533 U.S. at 227.
- 69.
323 U.S. 134 (1944).
- 70.
Id. at 140.
- 71.
- 72.
Hickman and Krueger (2007), p. 1238.
- 73.
Id. at 1309.
- 74.
Strauss (2012).
- 75.
Hickman and Krueger (2007), p. 1280.
- 76.
Id. at 1301.
- 77.
Eskridge and Baer (2008), p. 1100 (referring to United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936)).
- 78.
584 U.S. 518, 529 (1988).
- 79.
- 80.
- 81.
Ethyl Corp. v. EPA, 541 F.2d 1, 67 (1976) (Bazelon, C. J., concurring).
- 82.
Id. at 68 (Leventhal, J., concurring). That strong rationale for judicial review is not less applicable in areas involving science and technology.
- 83.
Czarnezki (2008).
- 84.
Meazell (2011), pp. 738–739.
- 85.
Id. at 784.
- 86.
Fisher et al. (2015), p. 1681.
- 87.
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Reitz, J.C. (2019). Judicial Deference to the Administration in the United States. In: Zhu, G. (eds) Deference to the Administration in Judicial Review. Ius Comparatum - Global Studies in Comparative Law, vol 39. Springer, Cham. https://doi.org/10.1007/978-3-030-31539-9_19
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