Barnett on Dodd-Frank as an Agency Deference Pioneer (AdLaw Bridge Series)
This is the second time in the AdLaw Bridge Series where I’m highlighting excellent scholarship inspired by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank). As I mentioned in my prior post and as Paul Rose and I have explored elsewhere ( here and here), Dodd-Frank has raised the stakes for financial regulation by requiring more than twenty federal agencies to promulgate hundreds of new rules and regulations. And it has also kept scholars busy, due in part to the high stakes involved but also in part to the various novel approaches to administrative law and regulation that Dodd-Frank has pioneered.
In “Codifying Chevrmore,” which is forthcoming in the NYU Law Review and available on SSRNhere, Kent Barnett* explores one of these novel Dodd-Frank inventions: the codification of a judicial review standard less deferential than the default Chevron standard. In particular, Congress directed courts to review for Skidmore weight any decision to preempt state law made by the Office of the Comptroller of the Currency (OCC). The paper’s abstract does a nice job of summarizing the effect of such “Chevmore codification” on agency decisionmaking:
This article considers the significance and promise of Congress’s unprecedented codification of administrative law’s well-known Chevron and Skidmore judicial-deference doctrines (to which I refer collectively as “Chevmore”). Congress did so in the Dodd-Frank Act by instructing courts to apply the Skidmore deference factors when reviewing certain agency preemption decisions and by referring to Chevron throughout.
This codification is meaningful because it informs the delegation theory that undergirds Chevmore (i.e., that Congress intends either to delegate interpretive primacy to agencies or, at least, allow courts to defer to agency views when courts retain interpretive primacy). Scholars and at least three Supreme Court justices have decried the judicial inquiry into congressional intent as “fictional” or “fraudulent.” They argue that Congress doesn’t think about interpretive primacy, courts don’t really try to divine congressional intent, and courts use overbroad assumptions when deciphering congressional intent.Dodd-Frank provides the best direct evidence to date that Chevmore is not a fiction. Dodd-Frank reveals that Congress knows of Chevmore, legislates with it in mind, and acquiesces to it. But Dodd-Frank’s preemption provisions—giving an agency rulemaking power but subjecting its decisions to Skidmore review—undermine the Supreme Court’s recent statement in City of Arlington v. FCC, 133 S. Ct. 1863 (2013), that Congress intends agencies to receive interpretive primacy (via Chevron’s more deferential review) whenever they use rulemaking. These insights support the delegation theory and earlier precedents (like United States v. Mead) that did not treat rulemaking as a talisman. If courts apply these earlier precedents, Chevmore is neither fiction nor fraud.Dodd-Frank also shows Chevmore codification’s promise for addressing longstanding administrative-law issues. With “Chevron rewards” and “Skidmore penalties,” Congress—as it did in Dodd-Frank—can clarify how agencies must act to obtain Chevron deference, balance “hard look” judicial review with regulatory ossification, and respond to regulatory capture. Chevmore codification thereby can become a key legislative tool for overseeing the administrative state.