Academic journal article Texas Review of Law & Politics

Chevron's Domain and the Rule of Law

Academic journal article Texas Review of Law & Politics

Chevron's Domain and the Rule of Law

Article excerpt

The Chevron doctrine holds that courts should defer to executive agencies' reasonable interpretations of the statutes they administer.1 Over the years, judges and commentators have criticized Chevron deference on a number of grounds. Some criticisms have been formalist, focusing on the Constitution2 and section 706 of the Administrative Procedure Act.3 Others have been based on the separation of powers, focusing on the desirability of having a judicial check on agency action.4 This Article proposes an additional criticism of Chevron based on the rule of law: that courts' unfettered discretion to decide whether to follow Chevron's framework results in arbitrary and unpredictable decisions about Chevron's applicability.

The late Justice Antonin Scalia described the rule of law as a law of rules.5 Rules are generalized pronouncements that dictate the outcomes of future cases, whereas standards are tests that allow judges to make case-by-case determinations based on the totality of the circumstances. 6 Justice Scalia argued that rules are preferable to standards when it comes to judge-made law, because rules ensure uniformity and predictability and reduce the influence of judges' political biases on their decisions.7 Adopting general rules of law instead of discretion-conferring standards ensures that our government is, as John Adams put it, one "of laws and not of men."8

The dichotomy between rules and standards has been an essential part of the debate over Chevron's domain-that is to say, the debate about which cases require the application of Chevron. For many years, Justice Scalia argued that Chevron should be read in a manner that advances the rule of law.9 As recently as City of Arlington v. FCC,10 Justice Scalia argued that Chevron should be read as creating an across-the-board presumption of Chevron's applicability.11 By contrast, Justice Stephen Breyer argued for a case-by-case approach that looks at the specific statute in question and asks whether Congress would have intended Chevron deference.12 Justice Scalia argued that his across-the-board presumption served as a clear rule-based alternative to Justice Breyer's case-by-case approach.

However, as the Court's recent decision in King v. Burwell13 shows, a majority of the Justices on the Court do not share Justice Scalia's rule-based vision for Chevron. Instead, they believe that the Court should retain wide latitude to determine whether Chevron applies in a given case, depending on whether the circumstances are "extraordinary." 14 Although the pendulum may have swung toward Justice Scalia's position in City of Arlington, it has now swung back toward Justice Breyer's case-by-case approach.

In this Article, I argue that the jurisprudence will continue to swing back and forth between these two positions, with the effect being that there will never be a definitive resolution on the question of Chevron's domain. As a result, the only way to safeguard the rule of law is to abandon Chevron deference completely. Part I of this Article summarizes the competing approaches to understanding Chevron's domain and explains how they reflect competing views about the desirability of rules and standards. Part II discusses why the debate over Chevron's domain will likely never be resolved, which would effectively lead to a standard-based approach, as opposed to a rule-based approach. Part III argues that, in light of this observation, the only way to ensure a rule-based approach to judicial review of agencies' statutory interpretations is to abandon Chevron deference completely.

I. COMPETING VIEWS OF CHEVRON

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,15 the Supreme Court announced a two-step approach to reviewing agency interpretations of law without providing a clear sense of the theory that justified it.16 Although Chevron suggested a number of possible rationales, such as political accountability and technical expertise, it was unclear which of these rationales formed the basis of the Court's decision. …

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