A Comparative "Hard Look" at Chevron: What the United Kingdom and Australia Reveal about American Administrative Law*

Article excerpt

Students of American administrative law often notice a striking anomaly in judicial deference to agency decisions: Judges are experts in interpreting statutes yet give great deference to agencies' legal interpretations, whereas judges closely review agencies' policy determinations despite the agencies' superior expertise and accountability.1 Scholars and judges have long noted this anomaly, observing that one might expect precisely the opposite - that courts would review questions of law de novo but generally defer to agencies' policy decisions.2 After all, why should courts give substantial deference to the statutory interpretations of agencies when statutory interpretation is a core judicial function?3 Conversely, why should unelected judges exercise a strict standard of review over policy decisions made by agencies when agencies are subject to political pressures from the two elected branches of American government?4

This Note offers one explanation of the anomaly through a comparative analysis of American, British, and Australian political institutions. The anomaly is conspicuously absent in the United Kingdom and Australia.3 Judges in those countries give no deference to administrative interpretations of law but grant substantial deference on policy decisions.6 One important factor underlying this dichotomy is that the emergence of the administrative state has generated more significant institutional tensions in the United States than in the United Kingdom and Australia. In the British and Australian parliamentary systems, the executive and the legislature are functionally fused: the Prime Minister controls both government as well as Parliament.7 As a result, there are no interbranch power struggles over control of the administrative state. In contrast, American administrative agencies are often caught in a tug-of-war between the President and Congress.8 Furthermore, unlike the unitary executives of both Australia and the United Kingdom, the American Executive is bifurcated between the President and the administrative agencies.9 Therefore, the American system is also more prone to intra-Executive discord than are the British and Australian systems, where executive power is more consolidated.

Thus, the American anomaly has its origins in the U.S. Constitution's separation of powers and the difficulties of applying our three-branch system of checks and balances to a fourth branch - the administrative state. The framers of the U.S. Constitution devised an ingenious system of checks and balances between the three branches of government. However, the framers did not envision the massive growth of the administrative state. The British and Australian legal systems were able to assimilate the administrative state with less complexity, in that administrators are situated squarely under the control of the executive.10 As a result, the United Kingdom and Australia have largely avoided the contentious issues of accountability and deference that plague American administrative law.11

The principal difference between the American system on the one hand and the two parliamentary systems on the other hand is the issue of electoral accountability. Voters in the United Kingdom and Australia know whom to hold accountable for administrative action: the party in power. American voters, in contrast, cannot attribute the blame or credit for administrative action quite as clearly: is Congress primarily responsible - since it passed the relevant legislation - or is the President responsible, since the Executive implements the legislation?

The seemingly inconsistent American deference doctrines for questions of law and policy actually represent rational judicial responses to imbalances created by the unanticipated growth of a fourth branch in a three-branch system of checks and balances. The resulting institutional tensions inherent in American administrative law cannot be resolved by current judicial doctrines alone. …