Chevron as a Voting Rule

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.

Comments

[K]

If Chevron is merely a voting rule, how is a district court judge to apply it?

[bcowan]

I do not see the proposed resolution, which is based on a strong distinction between "doctrinal" and "institutional" modes of decisionmaking, as much more than a temporary fix, although it could halt what the authors obviously see as the steady erosion of the Chevron rule. That rule is unstable for the reasons cited, principally the unresolved incompatibility between the levels at which it is expected to function.

However, in my view this is only a sample from a veritable continent of similar doctrinal inadequacies throughout the law. Inter-level incompatibilities for legal decisionmaking, like "best legal outcome" versus "reasonable outcome requiring deference," are pervasive throughout the judging enterprise.

Judges' decisions in many legal areas depend very often upon unstated presuppositions that banish into the background a range of such incompatibilities, thus drawing attention away from the immediate decision's inadequate efforts to resolve them.

Judge Posner's lament concerning the limits of intellect is important and appropriately sombre concerning what can be expected from the legal enterprise in this connection.

But there is nothing in the voting rule proposal (and this is the best thing about it, in my view) that prevents individual judges from struggling to co-ordinate the two regions noticed by the authors in connection with the Chevron question within a single doctrinal approach that could satisfactorily apply to a case or a group of such cases.

One might think that if a better doctrine were to emerge, one that potentially forged a contrast between the two regions that would work in a satisfactory way over a broad range of similar cases, that doctrine could become so influential that the voting process would come to seem superfluous. It is, after all, merely a concession to a problem that has not yet been solved satisfactorily. If the incompatibility could be overcome doctrinally, the voting rule could be dispensed with.

I think it is important that the fallacy of unreformability of doctrine not be committed in connection with legal puzzles like this. If a clear-eyed view could be taken of the actual reach of legal doctrines in resolving conventional problems conventionally, I believe that view would reveal more that is unresolved than resolved across the multi-layered social regions that come into view when resort to the law is had for its wisdom. The contemporary limitations on legal intellect may someday come to seem as quaint as trial by ordeal seems to us. We should be careful that our designs for producing outcomes efficiently not foreclose unnecessarily the possibility that better legal doctrines remain locked up in the future with no particular date for their emergence into action.

Because the voting rule leaves open the possibility that an emergent doctrine which resolves the issue at hand might make the vote superfluous, but only because of that openness, I would give it my endorsement.

[Antonin]

What about the non-delegation doctrine? Why should executive branch employees have *any* authority to legislate? And that, indeed, is what they do.

Is there any answer other than the pragmatic modern-world-is-too-complex? It didn't have to be that way. We don't have to have hundreds of executive administrative agencies promulgating millions of administrative rules (legislating) and then interpreting their own rules. It is begging the question to answer "complexity of our modern world." The executive branch *made it that way*.

The U.S. Constitution clearly provides that only the legislative branch may legislate and the legislative branch may not delegate this authority to any other branch.

[J. Michael Slocum]

I am assembling a series of weblinks for a course that I am co-teaching on Public Administration. I have put the Ludig von Mises site on the links as a "right" wing site, and need the equivalent "left" wing site. Any suggestions? I am not advocating, just illustrating. Masters level course.