Administrative Law and the Courts

Prior to the Chevron doctrine, the way federal courts handled agency legal interpretations was a multi-faceted inquiry that focused on what kind of legal interpretation was it. Was it a pure or abstract legal interpretation? Was it the application of law to particular facts? If the second, it would presumptively get a lot of deference. Those set up presumption, which could then be overcome in either direction, plus or minus, more deference or less deference. So you've got this 15-factor inquiry that you're supposed to use in each case to decide whether these baseline rules of deference should be altered up or down in any direction. You can understand why lower courts would be unhappy about this. And there were actually lower court opinions, where the judges, in the pages of the United States reports, screamed at the Supreme Court to clarify the law for them so they didn't have to do this all the time. So here's this opportunity to take this whole big mess, turn it into this much simpler two-step inquiry. Is the statute clear? If the statute's clear, we're done. If the statute's not clear, that means it's ambiguous, which means we go with the agency unless the agency is crazy. Sounds like it's a lot simpler. Maybe it is a lot simpler, but to make that work, you have to know what it means for a statute to be clear. And the courts have never definitively settled on what exactly they mean in the context of Chevron. And if you don't know what it means for a statute to be clear, then you don't know what it means for a statute to be ambiguous. Even once you're past that first step of the process and you've decided, however, that the statute is ambiguous, then you have to decide if the agency's interpretation is reasonable. What makes an agency interpretation unreasonable? Bad statutory interpretation. Bad policy choices. Bad explanation. All or none of the above. We actually don't know that either. Just as there's no definitive judicial pronouncement on what step one: clear meaning means, there's not definitive pronouncement on what it means for an agency interpretation to be unreasonable. We have a series of cases where courts have found agency interpretations unreasonable without actually saying what they're doing, and we can probably induce some conclusions from that, but this is not, even after 35 years, a crisp, well-developed approach. So if the whole point of Chevron, or a large point of it, was to spare courts a difficult decision process, it's not obvious that the Chevron world has made their lives easier.