PDF《CHEVRON DEFERENCE, THE RULE OF LAW,》

s decision making should intensify its entitlement to Chevron deference. My answer to the first question is Dno‖ and to the second, Dalmost always no.‖ I. THE RULE OF LAW IN THE ADMINISTRATIVE STATE Discussions of concepts like Dlegitimacy‖ or Dthe rule of law‖ are typically muddy because so many plausible conceptions exist of those ideas. Jeremy Waldron has identified the rule of law as an Dessentially contested‖ concept, meaning that its internal complexity gives rise to plausible rival versions of the concept that prioritize its various features 5. Id. at 843. 6. City of Arlington,

133 S. Ct. at

1879 (citing Henry J. Friendly, The Federal Administrative Agencies: The Need for Better Definition Standards,

75 HARV. L. REV. 1263,

1311 (1962)). 7. Id. (citing Barnhart v. Walton,

535 U.S. 212,

218 (2002)). 8. Id. (citing Talk Am., Inc. v. Mich. Bell Tel. Co.,

131 S. Ct. 2254,

2266 (2011) (Scalia, J., concurring);

Sackett v. EPA,

132 S. Ct. 1367,

1374 (2012)). 9. This Essay is part of a larger symposium entitled Chevron at 30: Looking Back and Looking Forward. For an overview of the symposium, see Peter M. Shane &

Christopher J. Walker, Foreword: Chevron at 30: Looking Back and Looking Forward,

83 FORDHAM L. REV.

475 (2014). 2014] CHEVRON, RULE OF LAW, AND PRESIDENTS

681 very differently.10 Scholars writing about the administrative state sometimes use legitimacy to mean something like resemblance to the original constitutional design,11 and sometimes―as I do― to mean worthy, in principle, of both respect and public acceptance.12 For the purposes of this discussion, I mean the rule of law to refer to government under a set of formal and informal processes that operate to promote the following normative propositions: 1. That government action should be bounded by rules promulgated by institutions legitimately authorized to make rules that both authorize and constrain government behavior;

2. That the governing rules and their implementation be respectful of human rights, including all individual rights entrenched in the law itself;

3. That government actors should obey the law, that is, they should perform conscientiously those duties that the law mandates and refrain from acts that the law prohibits;

4. That government actors, in exercising such discretion as the law may authorize, be able to justify their discretionary action according to reasons rooted in a sound interpretation of the relevant law;

and 5. That meaningful recourse should be available to citizens should they be injured by government action in violation of these requirements. My position is that a government so organized as to try to ensure these values provides its citizens the rule of law. Two aspects of the foregoing propositions are possibly controversial. First, I build legitimacy into the first of these propositions in order to couple the rule of law with a set of criteria that render law itself worthy of respect. Allen Buchanan has usefully written that Dan entity has political legitimacy if and only if it is morally justified in wielding political power.‖13 A full- blown explication of his argument is unnecessary for this Essay, but I mean, at least, to endorse his notion that to morally Dexercise a monopoly, within a jurisdiction, in the making, application, and enforcement of laws,‖14 the relatively small subset of a polity that gets to wield state power must take as their governing premise equal consideration for the interests of all persons subject to the jurisdiction'

s laws.15 As Buchanan argues, it is difficult to see how a wholly undemocratic society could fulfill tha........