The thirty-year history of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is a story of triumph in the courts and frustration on the part of administrative law scholars. Chevron's appeal for the courts rests in significant part on its ease of application as a decisional device. Questions about the validity of an agency's interpretation of a statute are reduced to two inquiries: whether the statute itself provides a clear answer and, if not, whether the agency's answer is a reasonable one. The framework can be applied to virtually any statutory interpretation question resolved by an agency, and its component elements – "clarity" and "reasonableness" – are sufficiently flexible to permit virtually any outcome in any particular case. Chevron also serves as the U.S. Supreme Court's most important admonition to lower courts not to substitute their judgment for agencies' on matters of policy, at least those matters that have not been resolved by Congress itself. Thus, Chevron can be invoked, when the circumstances warrant, as a symbol of judicial restraint.
The frustration of many administrative law scholars rests on Chevron's awkwardness in discharging important functions of judicial review of agency action. Judicial review performs a variety of functions, including protecting individuals from arbitrary bureaucratic action and promoting accountability by requiring agencies to explain the reasons for their decisions. I will focus here on another important function of judicial review, which I will call boundary maintenance. Boundary maintenance includes, importantly, the principle of legislative supremacy – that agencies must respect the will of Congress. Congress is the institution best situated to allocate governmental authority among different institutions in a federal system, and when Congress has settled on a division of powers, it is critical that courts respect and enforce it. But boundary maintenance also draws upon other important precepts, such as the requirements that agencies honor individuals' rights, abstain from interfering with authority given to other agencies, abide by relevant obligations contained in international law, and respect the traditional prerogatives of state and local governments.
Although Congress is the appropriate institution to establish the boundaries of agency authority ex ante, courts are well suited to resolve disputes over the scope of agency authority that arise ex post. One reason is that judges are relatively less biased about matters of government authority than other governmental institutions are likely to be. Federal judges, in particular, enjoy life tenure and secure compensation, and so are comparatively more insulated from the political passions of the day. This is not to say that judges are free from ideological predilections or intellectual fashions. But they are relatively more impartial than other, more politically responsive governmental institutions. They are not perfect umpires but are better than any of the alternatives. A second reason is that judges are poorly situated to seize significant political authority for themselves. They are largely limited to deciding cases brought by others, and, at the higher levels of the judicial hierarchy, can decide only a small fraction of contested cases in any given year. Moreover, because each judge exercises individual judgment in deciding the cases courts do hear, it is very difficult for courts to achieve the coordination that would be necessary to take control of policy on a sustained basis in any given area. In Alexander Hamilton's famous expression, the judiciary is the "least dangerous" branch, and hence the safest to task with resolving disputes over the boundaries of the power exercised by others.
Thomas W. Merrill,
Step Zero After City of Arlington,
Fordham L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/346