Notice & Comment

Who is Chevron for?, by Anya Bernstein

bernsteinIn June, the D.C. Circuit vacated part of an FCC order regulating inmate phone rates. The majority opinion focused on the FCC’s statutory jurisdiction over intra-state phone provision. But as Aaron Nielson noted on this blog, administrative law watchers may be interested in the opinion for its odd treatment of Chevron deference.

As I suggest below, the opinion raises two important questions. One: what entity is it, exactly, that gets Chevron deference? And two: who gets to decide when Chevron deference applies? These questions scratch at the heart of the whole notion of sovereignty under the rule of law, and they’re likely to become increasingly important in cases to come.

There’s a lot to say about both the merits of Global Tel*Link and the statutory interpretations in its three opinions, but here I’ll pretty much ignore all that and just stick to the Chevron issue. To set the scene: after a fairly involved notice-and-comment process, the FCC issued an Order in 2015 regulating intra-state inmate phone charges. Global Tel*Link challenged the FCC’s authority to do that.

An FCC Order would normally be subject to the Chevron deference framework, which instructs courts to uphold an agency’s reasonable interpretation of an ambiguous statutory term. But a divided panel declined to do that. Judge Edwards, writing for himself and Judge Silberman, explained that the court faced the “oddity” of personnel change. The FCC’s Commissioners had changed since the Order was promulgated, and a majority now “‘d[id] not believe that the agency had the authority’” asserted in the Order.

In court, the FCC thus “abandon[ed]” its defense of the Order, which was still in force. Since “the agency no longer s[ought] deference” for the Order, Judge Edwards reasoned, “it would make no sense for this court to determine whether the . . . agency positions advanced in the Order warrant Chevron deference.” Judge Pillard dissented, arguing that the court “should uphold the rule that is on the books and leave to the agency to decide whether and how to change it” through the usual procedures of notice and comment.

Judge Pillard’s dissent points to my first question: who or what is it, exactly, that deserves deference? Judge Edwards suggests that it’s the agency’s members or leaders: if a majority of the FCC’s Commissioners disavow an FCC Order, the court should defer to their views rather than to the Order.

Chevron itself, though, does not suggest this reasoning. It has little to say about the views of, say, the Director of the EPA as an individual. Rather, Chevron tells courts to defer to the conclusions reached by the agency, an institution subject to prescribed procedures and articulated standards. That reasoning carries over pretty easily into the FCC case. Individual Commissioners can have individual opinions, but the agency’s positions are expressed through its formal statements, Orders that carry the force of law.

Administrative law doctrine suggests that result. We only review final agency action, defer only to agency positions with the force of law, don’t defer to litigating positions, sue agency heads only as representatives of the institution, and so on.

More importantly, the notion of agencies as subject to the rule of law supports it too. The procedures required to make rules and orders push agencies to develop and exercise the expertise that helps legitimize their power. They allow the public to participate, which lends the agency a democratic imprimatur. And they give private parties a record on which to evaluate agency action and assess the grounds for challenge, keeping the agency within legal control. The beliefs of individuals—even a majority of individuals—do none of that.

The panel opinion here should disturb us, both procedurally and rule-of-law-ishly. The agency committed itself to a position by issuing an Order through prescribed procedures. Whatever it argues in court, the agency can’t really abandon that position without a new Order. The opinion, in contrast, suggests that the power of government action attaches to the person who holds a position, rather than to the position itself. Carl Schmitt would be pleased.

This odd conflation of individual with institution raises the other important question: who decides whether Chevron applies? The panel opinion suggests that deference is the agency’s right, to wield or to waive. But why? Could an agency similarly waive the rule against surplusage, or the Dictionary Act’s provision that the masculine usage implies the feminine? The deference regime generally works in the agency’s favor, but it doesn’t follow that the agency gets to decide when it applies.

Chevron is a binding precedent on courts. Sure, judges can use the agency’s help when evaluating its statutory interpretations. But the court’s obligation to follow Chevron doesn’t depend on the agency’s litigating position, just like a court’s subject matter jurisdiction doesn’t depend on a litigant’s preferences. The panel opinion suggests that a litigant can tell a court to ignore precedent. Chevron doesn’t give the court that option.

Chevron has been an academic whipping boy for a while now. We criticize it for not being thought through even as we criticize courts for not following through on it. (Such bad food, such small portions.) Global Tel*Link, though, should worry us for other reasons: the novel way it mistakes the personal for the political.


Anya Bernstein is an Associate Professor of Law at the University of Buffalo School of Law.

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