Notice & Comment

A Socratic Dialogue Inspired by “Marbury and the Administrative State”

Recently, I have been writing about Chevron because that, it appears, is what stereotypical administrative law professors do. In the course of doing so, and in the course of considering justifications for Chevron doctrine, I have been thinking about Professor Henry Monaghan’s classical defense of judicial deference to administrative interpretations of law: “ Marbury and the Administrative State.”

The standard, legalist concern about deference is that the judiciary has a duty to say what the law is when presented with a case or controversy. Deference to an agency’s say-so, the argument goes, is an abdication of that duty. Professor Monaghan’s ingenious solution is to dissolve the problem. If “the law” says courts should defer to reasonable agency interpretations, a court is emphatically saying what the law is when it defers. The law says “the agency’s reasonable interpretation shall be law” and a court upholds its Marbury duty by declaring that to be so.

This type of argument, while elegant, has never satisfied me. To help put my finger on that dissatisfaction, I drafted an imaginary colloquy between the Legalist—a Chevron skeptic—and Deferring Court (“D.C.”), whose initials share the abbreviation of the federal court of appeals that led (or tried to lead) the deference revolution that Justice Stevens accidentally launched with his 1984 Chevron opinion. I don’t pretend to think any of the ideas here are original, but I had fun writing it and thought I would share the folly.

Legalist: Why defer? Isn’t it your duty to say what the law is?

Deferring Court: The law tells us to defer.

Legalist: What do you mean by that?

D.C.: Congress tells us to defer.

Legalist: In the text?

D.C.: Well, sometimes, when a statute has an explicit delegation of authority.

Legalist: Okay, maybe I’ll agree with you on that, but I’m not sure. See APA section 706. But anyway, you want to defer all the time, not just when there are explicit delegations.

D.C.: The rest of the time the delegation of interpretive authority to the agency is implicit.

Legalist: Oh, the legislature intended that behind (or beyond) the text of the statute?

D.C.: Oh, no, I don’t believe in legislative intent.

Legalist: So where does Congress tell you do that?

D.C.: It’s actually a presumption—a legal fiction.

Legalist: Oh. Well, legal fictions are not per se outré. But why this one?

D.C.: Because it is a reasonable inference that Congress wanted agencies to resolve unclear questions of law.

Legalist: Why is it reasonable?

D.C.: Because agencies are politically accountable and technically proficient in a way courts are not. This is required in a complex, dynamic society.

Legalist: And it’s not reasonable to infer Congress “intended” (so to speak) that courts would do their usual duty of authoritatively interpreting the text?

D.C.: No.

Justice Breyer [interrupting]: YES, YES, sometimes that’s exactly what we should infer! See Mead

D.C.: Shut it, Steve. The more reasonable, and manageable, inference is deference.

Legalist: So when “the law” is telling you to defer, it is really you telling you that it makes sense to defer.

D.C.: Yes, and no. When we say it, it becomes precedent and then law.

Legalist: Fair enough, but is stare decisis an inexorable command?

D.C.: No.

Legalist: And if Chevron came out differently—in favor of de novo review, would “the law” tell you not to defer?

D.C.: Yes, it would. But stare decisis is not an inexorable command. The law could again work itself pure in the direction of deference.

Legalist: But I thought you made the law. You’re the Legal Realist, after all. What is “law” here?

D.C.: What is truth?

Pontius Pilate [interrupting]: Hey, that’s my line!


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