Chevron's Nondelegation Doctrine

David J Barron,Elena Kagan

doi:10.1086/scr.2001.3109689

Abstract

Previous articleNext article No AccessChevron's Nondelegation DoctrineDavid J. Barron and Elena KaganDavid J. Barron Search for more articles by this author and Elena Kagan Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 20012001 Article DOIhttps://doi.org/10.1086/scr.2001.3109689 Views: 53Total views on this site Citations: 4Citations are reported from Crossref Copyright 2002 The University of ChicagoPDF download Crossref reports the following articles citing this article:Brian D. Libgober Strategic Proposals, Endogenous Comments, and Bias in Rulemaking, The Journal of Politics 82, no.22 (Jan 2020): 642–656.https://doi.org/10.1086/706891Kent Barnett, Christina L. Boyd, Christopher J. Walker The Politics of Selecting Chevron Deference, Journal of Empirical Legal Studies 15, no.33 (Aug 2018): 597–619.https://doi.org/10.1111/jels.12187Mark Seidenfeld Revisiting Congressional Delegation of Interpretive Primacy as the Foundation for Chevron Deference, Supreme Court Economic Review 24 (Jun 2018): 3–40.https://doi.org/10.1086/696840 Vorbemerkungen zur Modellierung und Simulation, (): 197–198.https://doi.org/10.1007/978-3-8350-5403-5_12

Highlights

BACKGROUNDIn the beginning(at least for the purposesof this article), there was ChevronT. he questionin that case concernedwhether the EnvironmentalProtectionAgency (EPA) had acted lawfully when it issued a rule, in accordancewith applicablenotice-andcommentprocedures,definingthe term"stationarysource"in the CleanAirAct to referto whole plants,ratherthaneachpollutionemittingdevicewithinthem.In sustainingthe rule,the Courtpre-
One study showed that well over 40 percent of even the regulations published in the Federal Register in the first half of 1987 went into effect without notice and comment, usually in either overt or implicit reliance on the APA's "good cause" exemption;14and there is little reason to think that this percentage has declined since that time
Because the Mead Court's discussion of policy issues is veiled, it is susceptibleof two readings.On one interpretation, whichJusticeScaliaadopts,Meadsuggestsan unstructuredc, aseby-caseinquiryinto whetherdeferenceto an agencyinterpretation "makesbest sense." If courts take this approach,it will prove harmful,given the need for clarityand predictabilityin Chevron doctrine.But this understandingof Meadmisseswhatis most significantaboutthe decision.A truerinterpretationwouldrecognize in Meadtwo dominant(thoughnot congruent)dichotomies,widely used in administrativelaw-the first, and most notable,between proceduraflormalityandinformalitya, ndthe secondbetweengeneralandparticularaction.Meadrewardsmore formaland general formsof decisionmaking,notice-and-commenrtulemaking-in the implicit hope that these forms will correspond with accountabilityand disciplinein administrativedecisionmaking

Summary

BACKGROUND

In the beginning(at least for the purposesof this article), there was ChevronT. he questionin that case concernedwhether the EnvironmentalProtectionAgency (EPA) had acted lawfully when it issued a rule, in accordancewith applicablenotice-andcommentprocedures,definingthe term"stationarysource"in the CleanAirAct to referto whole plants,ratherthaneachpollutionemittingdevicewithinthem.In sustainingthe rule,the Courtpre-. CHEVRON'S NONDELEGATION DOCTRINE 207 uals and instructions,which issue without notice and comment, butwhichmayformthe basisfor enforcementproceedingsagainst regulatedparties?12Should deference extend to interpretations arising in informal adjudicativesettings, or through the initial issuance of case-specific opinion and no-action letters?13The inquiries could (and did) go on and on. These questions might appear to be arcana, they are anything but. Even prior to the statutory change, which had no effect on Mead, the Treasury Department's regulations provided that the Customs Service would give notice to the initial addressee before modifying a ruling letter and would refrain from retroactively applying the modification to that person except in unusual circumstances.

CONGRESSIONAL INTENT

PROCEDURALISMAND GENERALITY

CHEVRON AND DELEGATION

MEAD AND DELEGATION

Findings

CONCLUSION