Of central importance to administrative law and theory is the question whether, and when, courts will defer to agency interpretations of law. In Chevron v. Natural Resources Defense Council, the Supreme Court replaced earlier answers to that question with a new framework: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the Chevron framework has come under increasing strain. Doctrinally, there are many ambiguities and uncertainties about the nature of the inquiry at the first and second steps of Chevron, including questions about the admissibility and weight of various legal sources. More recently, the United States v. Mead decision and its successors have produced added complexity, and some confusion, by requiring an elaborate legal inquiry to determine whether Chevron applies in the first place. In practice, recent evidence suggests that Chevron has increased overall deference to agencies, but also that Chevron’s effect varies markedly with the ideological and political preferences of the judges who apply it.
These problems arise, in part, from a dubious premise of the Chevron enterprise, one that should be rethought. The dubious premise is that the legal system should adopt a doctrinal solution – the Chevron rule – for what is, after all, an institutional problem: the allocation of interpretive authority between agencies and courts when congressional instructions are silent or ambiguous. In this paper, Adrian Vermeule, and I explore an alternative, which is to adopt an institutional solution to the institutional problem. The institutional solution is to cast Chevron as a voting rule, thereby institutionalizing deference to administrative agencies. The precise details of the voting rule might vary, and we discuss different versions. To motivate the discussion, however, imagine a voting rule stating that where a litigant challenges agency action as inconsistent with an organic statute, the agency would prevail unless the judges, asking simply what the best interpretation of the statute is, vote to overturn the agency by supermajority vote – say, by a 6-3 vote on the Supreme Court, or by a 3-0 vote on a court of appeals panel. Our thesis is that a voting rule of this sort would produce more benefits and fewer costs than does the doctrinal version of Chevron.