Administrative Law is a pain. One case will purport to be the definitive standard on deference. Another case, written by the same Justice, will purport to reinforce that standard only when one reads what’s actually written there is little reinforcement happening. In fact, the Justices seem frustratingly confused on what rules and standards should govern – not to mention whether it should be a rule-based approach or a standards-based approach.
As I read for this week (the cases deal with court applications of Chevron deference to agency statutory interpretation), I wonder various approaches of judicial statutory interpretation have any relative benefit in terms of incenting Congress to write better, clearer, more well-reasoned laws in the first place.
As far as I can tell there are two approaches on the Court right now.
The majority approach is expressed most commonly by Justice Stevens, who wrote Chevron. There are basically two levels of deference to agency action for Stevens. Chevron deference applies to formal rulemaking and adjudicating by agencies where the statutory terms at issue are ambiguous. Agency action receives deference so long as it is reasonably. But informal processes – letters on tariffs from the Customs Service – receive Skidmore deference, meaning the agency view is a factor in determining reasonableness of agency action, but is not necessarily authoritative.
Then you have Justice Scalia who generally argues that delegations of interpretive and rulemaking power to agencies is rather broad and should generally be given Chevron deference in all cases of agency interpretation, whether formal rulemaking or informal guidance. Put another way, so long as the action falls within the legislative grant of power, it deserves Chevron deference. “Skidmore is an anachronism.” Of course, this is only if the statutory terms are ambiguous. Where Scalia perceives Congress to have spoken clearly, judicial review of agency action is much stricter.
The Stevens approach gives the Court a broader role in reviewing agency actions. The Scalia approach looks primarily at the statute and defers where the statute is perceived to be clear. (Obviously, both views are infused with political considerations and biases.)
I haven’t decided which is “better” in part because the two approaches aren’t necessarily as clear-cut as this post suggests. I like the Stevens approach because it provides an increased level of oversight for informal rulemaking that happens at agencies. (The irony here is not lost on me. I realize the inconsistency in wanting greater review of unelected bureaucrats by unelected juges.) I like the Scalia approach because it gives the court a smaller role in review of political branch activities. In part this allows complex regulatory schemes to include formal and informal rulemaking with little fear of judicial tampering.
The Scalia approach worries me primarily in the way that it creates a gap that Congress must step up to fill. Congress must exercise more oversight and where, the Scalia/texualist approach results in decisions like the one I wrote about the other week, where the literal meaning of terms precludes an agency from preventing fraud, Congress must step in to write better law and provide clearer guidance.
I’m not convinced Congress is capable of doing that right now. Yes, yes I realize this is a democracy. Voice of the people. All those truisms. But practically can Congress pass good, clear laws that deal with pressing issues facing our nation.
My question is whether the Scalia approach, if it were adopted in the majority of cases, would create an incentive for Congress to write laws that were clearer and write them more regularly. If so, is that a good thing? The flip side of that question is whether the Stevens approach creates a disincentive for Congress to use language more precisely and seek to update statutes more regularly because they can simply rely on courts to clean up after them.
To me, this question gets to the heart of the balance of powers in our constitutional system. On the one hand lawmaking is a process of argument and compromise, resulting in ambiguous terms and rules. However, this process, on the other hand, seems to allow Congress to avoid making hard choices about tough issues. Of course, that’s my underlying assumption of this entire post – that asking Congress to write good law that tackles hard challenges is asking too much.
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