In 1984, the Supreme Court adopted a new framework for determining when courts should defer to interpretations of statutes by administrative agencies. Previous decisions had looked to multiple contextual factors in answering this question.' Chevron U.S., Inc. v. National Resources Defense Council, Inc.2 appeared to reject this approach and require that federal courts defer to any reasonable interpretation by an agency charged with administration of a statute, provided Congress has not clearly specified a contrary answer. The Court justified this new general rule of deference by positing that Congress has implicitly delegated interpretative authority to all agencies charged with enforcing federal law.3
Chevron is widely regarded as a kind of "counter-Marbury" for the administrative state Indeed, read for all it is worth, the decision would make administrative actors the primary interpreters of federal statutes and relegate courts to the largely inert role of enforcing unambiguous statutory terms. This in turn would have enormous implications for the overall balance of power among the three branches of government. Executive branch agencies would gain new power to achieve rapid changes in policy through reinterpretation of their legislative authority; courts would play a diminished role in checking agency aggrandizement and in protecting reliance interests associated with past interpretations; and Congress, unable to rely on the courts to honor unstated institutional understandings, could react by enacting excruciatingly detailed statutes or intensifying the use of oversight hearings.
This Article has two primary tasks. The first, which is the subject of Parts I, II, and HI, is to determine whether Chevron in fact operates in the Supreme Court as the "counter-Marbury" portrayed by commentators. It turns out that the Court does not regard Chevron as a universal test for determining when to defer to executive interpretations: the Chevron framework is used in only about half the cases that the Court perceives as presenting a deference question. Nor have the multiple factors identified in the pre-Chevron period disappeared; to the contrary, the Court continues to rely upon them in many cases, despite their apparent irrelevance under Chevron. Perhaps most strikingly, in recent Terms the application of Chevron has resulted in less deference to executive interpretations than was the case in the pre-Chevron era. Thus, instead of functioning as a "counter-Marbury," there are signs that Chevron is being transformed by the Court into a new judicial mandate "to say what the law is. ''5 I will argue that the failure of Chevron to perform as expected can be attributed to the Court's reluctance to embrace the draconian implications of the doctrine for the balance of power among the branches, and to practical problems generated by its all-or-nothing approach to the deference question.
The second task of the Article is to propose an alternative to Chevron that avoids its theoretical and practical failings and is more congruent with the actual practice of the Supreme Court. Part IV sets forth what I call the "executive precedent model." The root idea is that executive interpretations should be viewed as a form of precedent and integrated into the process of statutory construction in much the same way that judicial precedent is integrated. The model begins with the understanding that both the executive branch and the judicial branch have inherent authority to interpret enacted law-and thus to generate "precedent" construing that law. The model then posits that the judicial power includes not only the power to determine whether to follow past judicial precedent interpreting enacted law, but also the power to determine what weight to give to past executive precedent construing that law. Under the proposed model, courts would treat executive precedent approximately the same way they regard the precedent of another court of coordinate jurisdiction: as prima facie correct, and as entitled to more or less deference depending on various contextual factors (such as the thoroughness with which the executive agency considered the issue, how long the executive interpretation has been followed, and so forth). Part V compares Chevron's deference model and the executive precedent model. Chevron rests on a principle of mandatory deference: courts are compelled to defer to agency interpretations because Congress has directed them to defer. The executive precedent model, in contrast, rests on a principle of discretionary deference: courts defer to executive interpretations because sound judicial decisionmaking requires that they follow the precedent of a coordinate branch of government. I contend that the discretionary deference principle implicit in the executive precedent model fits better within the constitutional and legal framework that gave rise to the modern administrative state, provides a unifying theory explaining why the traditional factors supposedly banished by Chevron are relevant and how they relate to ordinary modes of judicial interpretation, and offers better incentives than does Chevron for principled decisionmaking by courts, agencies, and Congress.
Thomas W. Merrill,
Judicial Deference to Executive Precedent,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/413