Changing interpretations of laws (agencies) when administration changes
- What is it really all about?
- Ensuring the will of Congress is carried out. Isn't that the real purpose?
- Or are agencies overruling Congress?
- Chevron is THE case for administrative law
An approach to take:
- Delegation: was there a "delegation"?
- Did the agency have the authority to exercise power?
- i.e., did Congress have the power to give this authority to the agency?
- ultra vires: is the person acting outside or within their authority?
- Was the delegated power "procedurally correct"?
- Did it comply with the notice and comment requirements of the APA?
- Statutory interpretation lessons from Chevron
- Has Congress spoken directly on the question?
- If not, reviewing court may not impose its own construction.
- Must ask whether the agency interpretation is based on a permissible construction of the statute.
- Where there is an explicit gap this may be construed as an "express delegation" of authority for the agency to issue regulations
- In analyzing whether one interpretation will be given over another the Court will look to the legislative history taken as a whole
- In Chevron, it was deemed to be silent
- Where an agency has changed its interpretation and does so without explanation it will generally be given less deference
- After all, law designed so we know how to behave—really, should not change based on administration/politics, impacts legislature's authority when this happens
- Unless it can be explained
- Part of problem of Chevron, one could say that this happened, and should have given less deference
- But one can rationalize all sorts of things…
- Also when different agencies have different interpretations, less deference
Overarching Lesson
- Judges are not experts in the field, are not part of the political branches and as such should avoid reconciling competing interests
- Courts should be insulated from having to make policy choices
