Academic journal article Notre Dame Law Review

Parting the Chevron Sea: An Argument for Chevron's Greater Applicability to Cabinet Than Independent Agencies

Academic journal article Notre Dame Law Review

Parting the Chevron Sea: An Argument for Chevron's Greater Applicability to Cabinet Than Independent Agencies

Article excerpt

While Chevron in fact involved an interpretive regulation, the rationale of the case was not limited to that context: " 'The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.'" Quite appropriately, therefore, we have accorded Chevron deference not only to agency regulations, but to authoritative agency positions set forth in a variety of other formats.

--Justice Scalia, Christensen v. Harris Cnty., 529 U.S. 576, 589-90 (2000) (Scalia, J., concurring) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)).


Consider the following cases over three different administrations and decades:

Under the presidency of Bill Clinton, the Department of Veterans Affairs instituted a compensatory regulation requiring claimants to prove that their disabilities resulted from negligent treatment by the Department of Veterans Affairs or that aggravation of previous disabilities occurred during treatment. (1) The Supreme Court unanimously held that the regulation was inconsistent with the controlling statute, which did not contain any requirement that veterans must prove fault attributable to the Department of Veterans Affairs in causing such injuries. (2)

Under the presidency of George W. Bush, the State of Oregon brought an action seeking a declaratory judgment and injunctive relief to prevent federal enforcement of the U.S. Attorney General's interpretive rule that physicians who assist the suicide of terminally ill patients under the Oregon Death with Dignity Act violate the Federal Controlled Substances Act. (3) The Supreme Court invalidated the Attorney General's rule. (4) Justice Scalia filed a dissenting opinion, joined by Chief Justice Roberts and Justice Thomas. (5)

Under the presidency of Barack Obama, several Medicare providers brought suit against the Secretary of the Department of Health and Human Services, challenging the Department's reimbursement adjustment for hospitals within the providers' networks that serve a disproportionate share of low-income patients. (6) The Supreme Court unanimously upheld the Department's reimbursement adjustment methodology. (7)

These cases highlight the daily task of cabinet agencies (8) to make highly contentious and politically charged policy choices against the backdrop of ambiguous congressional legislation. Just as the judiciary must fulfill its Marbury v. Madison function to "say what the law is," (9) cabinet agencies must fulfill their Chevron function to interpret frequently vague and general statutes enacted by Congress. (10) This challenge, in many ways, is the key legal question of our time: has the judiciary's ability to say what the law is been usurped by the executive's ability to do the same? (11)

Cabinet department decisions to "say what the law is," at their core, are policy decisions. While the Supreme Court gives independent and cabinet agencies Chevron deference under certain circumstances, it seems as though cabinet agencies are inherently a more natural "fit" for receiving Chevron deference. (12)

This Note argues that cabinet agencies are better suited to receive Chevron deference than independent agencies because voters should desire such policy decisions to be made by those closest to electoral accountability, rather than unelected Article III judges with life-tenure. (13) In other words, the judiciary should accept the countermajoritarian difficulty as fundamentally true and review cabinet agency decisions in light of Chevron deference. (14) Part I examines the revolutionary decision of Chevron and its aftermath. Central to Part I is an inquiry into whether Chevron should be applied on a case-by-case or across-the-board basis, and whether Chevron has usurped the judiciary's power to "say what the law is," as cemented by the cornerstone constitutional law case of Marbury v. …

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