Academic journal article Harvard Law Review

Justifying the Chevron Doctrine: Insights from the Rule of Lenity

Academic journal article Harvard Law Review

Justifying the Chevron Doctrine: Insights from the Rule of Lenity

Article excerpt

In 1984, in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (1) the Supreme Court announced a simple rule: courts must defer to reasonable agency interpretations of ambiguous administrative statutes. (2) The Court has been chipping away at this blanket rule of deference ever since. Most significantly, in United States v. Mead Corp., (3) the Court stated that Chevron's application should be limited to agency interpretations issued with the "force of law." (4) Where Chevron deference was once the background presumption, it is becoming the exception. (5)

One could blame the diminishment of Chevron's domain on legitimate concerns about agency capture, executive aggrandizement, and the like. (6) However, there are many satisfying responses to these policy arguments, most grounded in the twin observations that agencies are more expert and more politically accountable than courts and therefore more suited to the often complex and policy-driven task of administrative statutory interpretation. (7) Chevron's diminution may be due to an even more fundamental problem: it is not clear how Chevron--in its original incarnation--can be justified. Marbury v. Madison (8) identifies the baseline assumption about interpretation: "It is emphatically the province and duty of the judicial department to [s]ay what the law is." (9) Why, then, should courts depart from this assumption when an agency has interpreted a statute?

The Chevron opinion gave at least four different answers to this question, without giving any clear signal as to which justifications the Court viewed as necessary or sufficient in and of themselves. The Court suggested that the judiciary should defer to agencies because (1) Congress intends the courts to do so, (2) agencies exercise delegated legislative power when they issue interpretations, (3) agencies are more politically accountable than courts, and (4) agencies have the necessary technical expertise that courts often lack. (10)

Over the last two decades, each of these rationales has proven unsatisfactory, such that the Chevron doctrine has gone from having four potentially viable rationales to having no clear theoretical foundation. On several occasions, most notably in Mead, the Court has attempted to shrink the boundaries of the Chevron doctrine in order to make it rest more comfortably on one or another of the original justifications.

But the Supreme Court's efforts have been misguided. It is not necessary to alter the Chevron doctrine in order to find a theoretical foundation for it. It is only necessary to enrich our understanding of one of the doctrine's original rationales: political accountability. As initially articulated in the Chevron opinion, this justification relied on the fact that resolving statutory ambiguities typically requires some sort of policy choice. "The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: 'Our Constitution vests such responsibilities in the political branches.'" (11) The obvious problem with this formulation is that the Constitution also vested "judicial Power" in politically unaccountable courts. (12) If statutory interpretation, a core judicial role, requires the exercise of policy discretion, then it seems odd to argue that policy responsibility was only constitutionally vested in the politically accountable branches.

In fact, though, the political accountability rationale may be salvaged in part by an unlikely candidate: the rule of lenity. Under this rule, which pre-dates the Constitution by a large margin, (13) courts are instructed to adopt the meaning of an ambiguous criminal statute that will avoid attaching penal sanctions to an action in the absence of a clearly expressed legislative intention to do so. (14) While there are several implications of such a doctrine, one is of paramount importance for Chevron deference: the rule recognizes that it is inappropriate for the judiciary to make a policy choice even if such a choice seems to be required by a court's statutory interpretation duties. …

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