Chevron Deference, the Rule of Law, and Presidential Influence in the Administrative State

Abstract

This paper, prepared for a symposium marking the thirtieth anniversary of the Supreme Court's decision in Chevron v NRDC, argues that, despite the doctrine's acquiescence in broad administrative discretion, so-called Chevron deference is reconcilable with a conventional account of what the rule of law entails in the modern administrative state. In all but the rarest of cases, however, rule of law values imply that deference should be accorded or not entirely on the basis of the legal interpretation proffered by the administrative agency that is Congress’s designated administrative decision maker, which is typically not the White House. White House involvement in persuading an agency to adopt a non-arbitrary interpretation that the agency embraces and can defend based on reasons rooted in law obviously should not count against that interpretation. But White House involvement should not be thought to earn deference for a proffered legal interpretation, whether originally preferred by an agency or not, that otherwise appears unjustified under “hard look” review. If the White House steers the agency away from an earlier preferred, but less sound interpretation of law, then the negotiated view, if non-arbitrary, may be given deference. But if the White House steers an agency away from an earlier preferred agency interpretation that would have been deference-worthy and at least as sound (in the eyes of the court) as the White House view now being offered as the agency’s own, the court should remand for agency reconsideration unless the White House-preferred interpretation can be shown to reflect exceptional problems of agency coordination.