How and when should courts give way to the decisions made by administrative bodies like the Environmental Protection Agency or the Department of Labor? What about in situations where Congress’s intent for that agency isn’t clear?

These questions, purportedly answered by the Supreme Court of the United States in its landmark 1984 decision in Chevron v. Natural Resources Defense Council, are up for reconsideration in a set of lawsuits now pending before the nation’s highest court. Many believe the Court is likely to overrule its holding in the 40-year-old case, which established a general standard of judicial deference to administrative agencies.

For Aditya Bamzai, a professor of law at the University of Virginia specializing in administrative law, whether the Court keeps or rejects the label “Chevron doctrine” is of little matter ­— instead, the Court should focus on creating a practicable analytical framework for lower courts to follow.

Speaking at the Scalia Lecture at Harvard Law School, which is held each year to honor the late U.S. Supreme Court Justice Antonin Scalia ’60, Bamzai explored the conflicting precedents leading up to Chevron and the tensions contained in the case itself, ending with a suggestion of how the Court might resolve the longstanding problem of when to defer to agency decisions.

“My own view is that the fundamental principle at issue in the Chevron opinion, whether and when courts should give weight to the legal interpretations articulated by agencies, has been around for centuries, both before and since Chevron, and it won’t go away,” he said. “The critical question has always been about the proper scope or domain of that principle. That was true before the Chevron opinion, will remain true after Chevron, and will remain true after the Supreme Court decides the pending cases.”

Bamzai first outlined the basics of the Court’s decision in Chevron. “The Court appeared to adopt a simplified two-step process for when courts should defer to an agency construction of a statute it administers,” he said.

He added that the opinion seemed to establish “that first the statute controls, if Congress has spoken directly” on the question at hand. If it hasn’t, a reasonable “agency interpretation controls, if the statute is ambiguous.”

Bamzai said that in coming to its decision, the Court indicated that it had relied on precedent and “on a series of arguments about the relative competencies of courts and agencies regarding interpretation and policy,” including the idea that judges are unelected, and are not experts in the various fields covered by administrative agencies.

The Court’s majority hadn’t considered its decision to be groundbreaking, Bamzai contended. In fact, the author of Chevron, former Justice John Paul Stevens, likely did not “intend to change the underlying law in this area.”

“The critical question has always been about the proper scope or domain of the fundamental principle at issue in the Chevron opinion. That was true before the Chevron opinion, will remain true after Chevron, and will remain true after the Supreme Court decides the pending cases.”

But the Court’s holding led to different perspectives on the decision’s scope, he said. “One perspective, which was for a long time associated with Justice Scalia, was of a relatively formal two-step process like the one I’ve described,” said Bamzai. “Another perspective would have treated the framework in a much more contextual manner, perhaps even reserving pure questions of statutory construction for the courts to decide.”

The latter perspective was on display in United States v. Mead, a case decided 17 years after Chevron, he said, where the Court “explained the measure of deference that a court gives to an agency interpretation by saying that it depended in part on the formality of the agency’s procedures.”

This, in turn, resulted in a variety of levels of deference, and “began to reveal some tensions when assessed against the arguments in Chevron itself about the relative competencies of courts and agencies,” said Bamzai. Chevron’s logic that judges “have no constituency, [and therefore] have a duty to respect policy choices made by those who do. Even for those who agree with that principle, as I do, the question was how it applies in the context of statutory interpretation. And that’s because the contextual approach suggested that sometimes a simplified two-step framework applied to applying judicial deference. And sometimes it did not.”

In deciding how to tell one category of cases from the other, he said, “the question of scope or domain is the key question.” The problem, he added, is that “defining that domain based on judgments about institutional competency poses these sorts of challenges. On the one hand, there certainly were considerations mentioned in Chevron about democratic accountability and expert judgment. On the other hand, there were considerations related to fair notice, or to predictability, uniformity, that are ordinarily associated with independent court review of statutory questions.”

Navigating these ambiguities has inevitably led to more confusion and more court cases, he said.

Examining the precedents

In Chevron, the Court did not only rely on policy considerations — it also invoked a series of precedents in its decision. And here, too, there are problems, in Bamzai’s view. “That is because, in the decades before Chevron, courts did not approach the topic of judicial deference to agency interpretation in a consistent fashion.”

Bamzai quoted from an opinion by a judge in the United States Court of Appeals for the Second Circuit, Henry Jacob Friendly [’27], writing about a case that appeared eight years before Chevron. “In the opinion, Judge Friendly remarked on the ever-troubling question [of] whether the interpretation of a statute is the kind of question which justifies or requires judicial deference. He said that, as of 1976, he could discern two lines of Supreme Court decisions on the subject, which are analytically in conflict, with the result that a court of appeals must choose the one it deems more appropriate for the case at hand.”

Some, Bamzai continued, supported the idea that administrative agencies should be given great deference, while others “according to [Friendly], sanctioned free substitution of judicial for administrative judgments when the question involves the meaning of a statutory term.”

Sources beyond Chevron

There are two other sources that could help resolve the question of the boundaries of judicial deference, said Bamzai, neither of which were discussed in Chevron: the Constitution and the standard of review provision in 1946’s Administrative Procedure Act, or APA. “Some argued that … the vesting clause of judicial power in Article III and the Due Process Clause required de novo review, and it barred judicial deference to executive statutory interpretation in all circumstances.”

But, when assessed in the context of historical practice, against this “relative backdrop, it doesn’t appear that the Constitution mandates as a general rule de novo judicial review of statutes in all circumstances,” he said. For example, if Congress can “cut off judicial review altogether,” then “it stands to reason that it can authorize judicial review in circumstances more limited than full de novo review of legal questions.”

Still, Bamzai said, “the Constitution might require [a] de novo standard of review in certain targeted areas.”

As for the APA, “As a textual matter, many, myself included, have viewed [its] language as requiring some form of de novo review for statutory issues,” he said. “After all, what to make of the [statute’s] language, ‘The courts shall decide all relevant questions of law and interpret constitutional and statutory provisions’?”

Where are the boundaries?

So, where might one draw the bounds of judicial deference, given these complicated factors? Bamzai proposed a potential framework. “Where the traditional tools of statutory construction suggest an outcome to a statutory interpretation question, the Court would apply them,” he said. “Among those tools would be a form of deference to agency action under appropriate circumstances. Where such deference occurred, the Court would not be departing from the best meaning of the statute. Rather, the best meaning of the statute simply would require deference to the appropriate customary and contemporaneous agency interpretations.”

On the other hand, “Where Congress used different terminology, or more open-ended terms in an organic statute, perhaps terms like ‘reasonable,’ ‘appropriate,’ ‘feasible,’ or ‘practicable,’ the agency’s actions under that statute, including any decisions to change course on a perspective that the agency adopted, would generally be subject to other standards of review.”

In the end, it doesn’t matter whether the Court retains the label of Chevron or not, Bamzai concluded. “What ultimately matters is the substance of the analytical framework that the Court employs, whether that framework is called Chevron, or referred to by some other name.”

The Scalia Lecture series, which was established by an anonymous donor in 2013 in honor of former Supreme Court Justice Antonin G. Scalia ’60, is aimed at promoting and advancing the understanding of the founding principles and core doctrines of the U.S. Constitution.

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