PDF《CHEVRON DEFERENCE, THE RULE OF LAW,》

679 CHEVRON DEFERENCE, THE RULE OF LAW, AND PRESIDENTIAL INFLUENCE IN THE ADMINISTRATIVE STATE Peter M.

Shane* INTRODUCTION Adrian Vermeule has accurately observed that D[t]he administrative state is the central and unavoidable topic of modern constitutional theorizing.‖1 So it is also with administrative law theorizing. The topic is inevitably central because Dadministrative state‖ describes the government under which we live. The topic is unavoidable for two reasons. First, the combination of regulatory and enforcement authority in the same hands challenges Americans'

civics-book understanding of the separation of powers. Despite the constitutional vesting of legislative power in Congress, Dthe citizen confronting thousands of pages of regulations―promulgated by an agency directed by Congress to regulate, say, ?in the public interest'

― can perhaps be excused for thinking that it is the agency really doing the legislating.‖2 Second, in the face of Americans'

oft-voiced aspiration for a government of laws, the bureaucracy appears to be awash in discretion. This discretion is arguably controlled only at the margins by a federal judiciary that sanctions the passing of policymaking authority to administrative agencies under a rarely enforced nondelegation doctrine.3 For both reasons, the legitimacy of the administrative state is always a topic ripe for debate. To those anxious about the administrative state'

s legitimacy, the U.S. Supreme Court'

s now-iconic Chevron4 decision could well be troubling. Especially if read literally, its famous two-step framework for judicial review of agency legal interpretation affords administrative agencies considerable deference in imputing meaning to Congress'

s enactments. Federal courts are to defer to any Dpermissible‖ interpretation of the law in * Jacob E. Davis and Jacob E. Davis, II Chair in Law, The Ohio State University Moritz College of Law. 1. Adrian Vermeule, The Administrative State: Law, Democracy, and Knowledge, in OXFORD HANDBOOK OF THE UNITED STATES CONSTITUTION (Mark Tushnet et al. eds., forthcoming 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id =2329818. 2. City of Arlington v. FCC,

133 S. Ct. 1863,

1879 (2013) (Roberts, C.J., dissenting). 3. LISA SCHULZ BRESSMAN, EDWARD L. RUBIN &

KEVIN M. STACK, THE REGULATORY STATE 141C42 (2010) (D[T]he [Supreme] Court has suggested that no delegation is likely to fail muster on constitutional non-delegation grounds.‖). 4. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S.

837 (1984).

680 FORDHAM LAW REVIEW [Vol.

83 question whenever a statute Dis silent or ambiguous with respect to the specific issue‖ presented.5 Chief Justice Roberts has recently voiced in dramatic terms the anxiety such deference provokes: When it applies, Chevron is a powerful weapon in an agency'

s regulatory arsenal. Congressional delegations to agencies are often ambiguous―expressing Da mood rather than a message.‖6 By design or default, Congress often fails to speak to Dthe precise question‖ before an agency. In the absence of such an answer, an agency'

s interpretation has the full force and effect of law, unless it Dexceeds the bounds of the permissible.‖7 It would be a bit much to describe the result as Dthe very definition of tyranny,‖ but the danger posed by the growing power of the administrative state cannot be dismissed.8 The Chief Justice appears to see little difference between Chevron deference and the wholesale abdication of legal construction entirely to a single branch of government. I try, in this Essay, to evaluate this particular worry: Should Chevron deference be thought inconsistent with legitimacy in the administrative state?9 In particular, I examine whether or under what conditions Chevron poses a threat to what is routinely taken to be an essential component of government legitimacy, namely, the rule of law. This inquiry requires me first to set out a conception of the rule of law that is plausible for the administrative state―a state in which discretion abounds. I argue that Chevron is consistent with the most normatively attractive such conception. I believe, however, that a proper conception of the rule of law also has implications for two important questions: (1) whether there is room for political considerations in judicial review of the permissibility of agency action and (2) whether presidential involvement in an agency'