Abstract
Although administrative law doctrine requires courts to defer to an agency's reasonable statutory interpretation, the doctrine is unclear as to whether an agency gets less deference when it changes its own prior interpretation. We formally analyze how judicial deference to revised agency interpretations affects those interpretations' ideological content. We find a non-monotonic relationship between judicial deference to inconsistent agency interpretations and interpretive extremism. This arises because as courts become less deferential to revised interpretations, the initial agency finds a moderate interpretation that will not be revised more appealing. Normatively, our results suggest that an interest in responsiveness of interpretive policy to the preferences of the incumbent leadership favors deference to revised interpretations, while an interest in ideological moderation favors a somewhat less deferential posture to interpretive revisions.
Highlights
Federal agencies in the United States have a great deal of flexibility in interpreting the statutes that they administer
We find a nonmonotonic relationship between judicial deference to inconsistent agency interpretations and interpretive extremism
Modern administrative law doctrine has struggled with the question of the desirable degree of deference that a reviewing court ought to confer on an administrative agency’s interpretation of a statute when the agency’s interpretation differs from the agency’s own prior construction of the same statutory provision
Summary
Federal agencies in the United States have a great deal of flexibility in interpreting the statutes that they administer. This article considers one aspect of this issue: whether, or under what conditions, reducing the degree of judicial deference to an inconsistent agency interpretation will lead an agency’s interpretation to be more aggressive (that is, closer to the preferred position of the incumbent leadership) or more moderate (that is, closer to the midpoint between the ideal interpretations of the incumbent party and the opposition party). When the courts take a more intermediate approach—sometimes upholding revised interpretations but sometimes rejecting them—the agency’s initial interpretation is more likely to be ideologically moderate The reason for this finding is as follows: the incumbent party would like to secure the most favorable interpretation possible, it would like to lock in its interpretation, thereby reducing the likelihood of future reversal.
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