Chevron and Deference to Administrative Agencies

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.
      • If permissible, OK
    • 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
View most interesting 'lawschool' photos on Flickriver

Related Notes

Related Commentary