Agency Statutory Interpretations Research Articles

Notice-and-Comment Rulemaking in Comparative Perspective: Some Conceptual and Practical Implications

AbstractPublic participation in administrative rulemaking is typically embodied in notice-and-comment procedures essentially mandating the publication of a proposed rule and an opportunity for the public to submit comments thereon prior to its adoption. This article presents a comparative analysis of the notice-and-comment regimes under the Philippine Administrative Code (PAC) and the United States’ Administrative Procedure Act (APA). In stark contrast to the Philippine legal framework which renders compliance with the notice-and-comment procedure practically discretionary on the part of the agency, the APA prescribes the conduct of notice-and-comment as a general rule, and courts rigorously police agencies’ compliance with the procedure. This article argues that the mandatory (or discretionary) nature of the notice-and-comment mechanism impinges on the efficacy of procedural challenges to administrative rules, the standard of judicial review applied to agency statutory interpretation, and the statutory creation of public norms. The article hopes to inspire a re-evaluation of the Philippine framework while providing valuable lessons to other jurisdictions with similar legal architectures.

The Politics of Selecting Chevron Deference

In this article, we examine an important threshold question in judicial behavior and administrative law: When do federal circuit courts decide to use the Chevron deference framework and when do they select a framework that is less deferential to the administrative agency's statutory interpretation? The question is important because the purpose of Chevron deference is to give agencies—not judges—policy‐making space within statutory interpretation. We expect, nonetheless, that whether to invoke the Chevron framework is largely driven by political dynamics, with judges adopting a less deferential standard when their political preferences do not align with the agency's decision. To provide insight, we analyze circuit court decisions from 2003 until 2013 that review agency statutory interpretations. Our results—from the largest and most comprehensive database of its kind—provide partial confirmation of our expectations. When courts reviewed liberal agency interpretations, all panels—liberal, moderate, and conservative—were equally likely to apply Chevron. However, when reviewing conservative agency interpretations, liberal panels selected the Chevron deference framework significantly less frequently than conservative panels. Contrary to limited prior studies, we find no evidence of “whistleblower” or disciplining effects when judges of different judicial ideologies comprised the panel. Viewed together, our results provide important implications for the current debate on whether to eliminate, narrow, or clarify Chevron's domain.

An Empirical Examination of Agency Statutory Interpretation

How do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in interpreting statutes. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns of how the Board interprets statutes over time. Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history. Moreover, despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes. The balance required—between policy coherence, stability and democratic accountability—is fundamentally different in the context of agency statutory interpretation than for interpretation by a judicial body. Rather than acting like a court, adjudicative agencies like the NLRB should leverage their expertise to arrive at an interpretation that best effectuates the purpose of the statute. For an agency like the NLRB that makes decisions almost exclusively through adjudication this may necessitate that the agency reveal its statutory interpretation in a more transparent fashion through rulemaking.

Chevron in the Circuit Courts

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevrondeference— the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1,558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevrondeference 77% of the time. But there was nearly a twenty-five-percentage-point difference in agency-win rates when the circuit courts applied Chevrondeference than when they did not. Among many other findings, our study reveals important differences across circuits, agencies, agency formats, and subject matters as to judicial review of agency statutory interpretations. Based on prior empirical studies of judicial deference at the Supreme Court, however, our findings suggest that there may be a ChevronSupreme and a ChevronRegular: whereas Chevronmay not have much of an effect on agency outcomes at the Supreme Court, Chevron deference seems to matter in the circuit courts. That there is a ChevronSupreme and a ChevronRegular may suggest that, in Chevron, the Supreme Court has an effective tool to supervise lower courts’ review of agency statutory interpretations. To render Chevron more effective in creating uniformity throughout the circuit courts, the Supreme Court needs to send clearer signals on how courts should apply the deference standard.

Administrative Answers to 'Major Questions': On the Democratic Authority of Agency Statutory Intepretation

This Article critiques the legal and theoretical premises of the “major questions doctrine,” and proposes a revision of the doctrine that better comports with the institutional structure and ideological origins of our administrative state. The major questions doctrine holds that courts generally should not defer to agency statutory interpretations that concern questions of “vast economic or political significance.” This doctrine, most recently invoked by the Supreme Court in King v. Burwell, purports to enforce the constitutional norms of non-delegation and popular sovereignty. But it relies on two auxiliary political-theoretic assumptions about the proper roles of courts and agencies. First, it imports the assumption of the Legal Process School that courts are always the primary interpreters of the important value questions implicated by statutory law. Second, it imports Max Weber’s assumption that administrative officials are morally-neutral technocrats, who should only implement value choices specified by statute. These assumptions do not capture important aspects of the institutional structure and ideological justification for our American administrative state. I show how the Progressive thinkers who first advocated administrative governance in the United States believed that administrators should resolve important value questions in consultation with the affected public. Our current institutions reflect this vision to a significant degree, with broad-textured statutes that leave significant norm-setting authority to agencies, while requiring that such decisions be made through participatory procedures. I propose that the major questions doctrine should be reformulated, so that an agency’s resolution of a “major question” can receive full Chevron deference if it is promulgated through notice-and-comment rulemaking and addresses the relevant political and economic questions in the rulemaking record. If an agency’s interpretation is not promulgated through rulemaking, the reviewing court should give weight to the agency’s interpretation proportional to the degree of its deliberative engagement with the affected public, and its discussion of the relevant policy questions.

Chevron in the Circuit Courts

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevron deference—the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1561 agency interpretations the circuit courts reviewed from 2003 through 2013, we found that the circuit courts overall upheld 71% of interpretations and applied Chevron deference 75% of the time. But there was nearly a twenty-five percentage-point difference in agency-win rates when the circuit courts applied Chevron deference than when they did not. Among many other findings, our study reveals important differences across circuits, agencies, agency formats, and subject matters as to judicial review of agency statutory interpretations — as our rankings based on these variables illustrate. Based on prior empirical studies of judicial deference at the Supreme Court, however, our findings suggest that there may be a Chevron Supreme and a Chevron Regular: Whereas Chevron may not have much of an effect on agency outcomes at the Supreme Court, Chevron deference seems to matter in the circuit courts. That there is a Chevron Supreme and a Chevron Regular may suggest that, in Chevron, the Supreme Court has an effective tool to supervise lower courts’ review of agency statutory interpretations.

Chevron Inside the Regulatory State: An Empirical Assessment

For three decades, scholars (as well as courts and litigants) have written thousands of articles (and opinions and briefs) concerning the impact of the Chevron deference regime on judicial review of agency statutory interpretation. This should come as no surprise as Chevron is the most-cited administrative-law decision of all time. Little attention, however, has been paid to how Chevron and its progeny have actually shaped statutory interpretation inside the regulatory state. As part of the Fordham Law Review symposium Chevron at 30: Looking Back and Looking Forward, this Essay presents the findings of the first comprehensive empirical investigation into the effect of Chevron and related doctrines on how federal agencies interpret statutes they administer. The Essay draws on a larger, 195-question survey of federal agency rule drafters that covered a variety of topics related to agency statutory interpretation. (The survey is available online at http://ssrn.com/abstract=2481631.) The author administered the survey during a five-month period in 2013 at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (Federal Communications Commission and Federal Reserve). Responses were received from 128 agency officials whose primary duties included statutory interpretation and rulemaking (for a 31% response rate). This Essay provides a new and important window into the role of Chevron and its progeny inside the regulatory state. Based on the findings presented in this Essay, it would not be an understatement to conclude that thirty years of Chevron have saturated the federal agency rulemaking process. The rule drafters surveyed overwhelmingly indicated familiarity with and use of Chevron and related doctrines in their statutory interpretation efforts. Moreover, two in five rule drafters surveyed agreed or strongly agreed — and another two in five somewhat agreed — that a federal agency is more aggressive in its interpretive efforts if it is confident that Chevron deference (as opposed to Skidmore deference or de novo review) applies.

Longstanding Agency Interpretations

How much deference — or what kind — should courts give to longstanding agency interpretations of statutes? Surprisingly, courts and scholars lack a coherent answer to this question. Legal scholars long have assumed that longstanding agency statutory interpretations are treated with heightened deference on judicial review, and federal courts sometimes have made statements suggesting that this is the case. But in practice, federal court review of longstanding agency interpretations — at both the Court of Appeals and the U.S. Supreme Court levels — turns out to be surprisingly erratic. Reviewing courts sometimes note the longevity of an agency’s statutory interpretation as a plus factor in their deference analysis, but at other times completely ignore or dismiss an agency interpretation’s longevity. Moreover, judicial rhetoric about the relevance of longevity in the review of agency statutory interpretations is inconsistent from case to case. What makes this doctrinal incoherence particularly remarkable is that courts usually care much more about the predictability of statutory interpretations and about upsetting settled institutional practices. In fact, in two analogous contexts — judicial interpretations of statutes and historical executive branch practice in the constitutional arena — courts accord strong precedential effect, or a presumption of correctness, to established legal constructions. This Article provides the first detailed study of federal court treatment of longstanding agency statutory interpretations — illuminating doctrinal inconsistencies and examining longevity-related factors that both favor and disfavor deference. The Article also compares federal courts’ chaotic treatment of longstanding agency statutory interpretations with the precedential effect that courts give to longstanding judicial interpretations of statutes and the historical “gloss” effect that courts give to past executive practice in constitutional interpretation. Ultimately, the Article argues that longstanding agency interpretations of statutes are at least as deserving of heightened judicial deference and that, at a minimum, federal courts’ disparate treatment of such interpretations — without acknowledging or justifying the distinction — is troubling. The Article advocates that longstanding agency interpretations should be entitled to precedential effect by reviewing courts and outlines how such an approach might work.

The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan

Dozens of law review authors and judges have proclaimed a Chevron Revolution in the Supreme Court's willingness to defer to agency interpretations, but few authors have examined this claim in a systematic empirical manner. Seeking a more factually grounded understanding, Professor William N. Eskridge, Jr. and Lauren Baer, Esq., conducted an empirical study of all 1014 Supreme Court cases between Chevron (1983) and Hamdan (2006) in which an agency interpretation of a statute was at issue. Eskridge and Baer conclude that there has not been a Chevron revolution, at the Supreme Court level anyway. The new deference regime associated with the Chevron decision continues to exist alongside older deference regimes, including Skidmore, Seminole Rock, Beth Israel, and Curtiss-Wright. Indeed, from the time it was handed down until the end of the 2005 term, Chevron was applied in only 8.3 percent of Supreme Court cases evaluating agency statutory interpretations. Instead, the Court has employed a continuum of deference regimes. This continuum is more complicated than the literature or the Court's own opinions suggest, and it is a continuum in which Chevron plays a modest, perhaps even minor, role. Perhaps the authors' most striking finding is that in the majority of cases - 53.6 percent of them - the Court does not apply any deference regime at all. Instead it relies on ad hoc judicial reasoning of the sort that typifies the Court's methodology in regular statutory interpretation cases. Eskridge and Baer find that neither Chevron nor the other deference regimes is applied consistently by the Supreme Court. The authors find some functional regularities, however. The Court is most likely to defer to agency interpretations when they are consistent with norms recognized by the Justices, reflect the application of genuine expertise to a statutory problem, and are pursuant to delegated lawmaking authority. Eskridge and Baer also find that almost all of the Justices vote ideologically; that is, conservative Justices are significantly more likely to agree with conservative agency interpretations, and liberal Justices are significantly more likely to agree with liberal ones. The last portion of the article applies the empirical findings to address normative questions. Based upon an examination of constitutional structure and legitimacy; the rule of law and the regnant super-statute, the APA; and institutional competence, Eskridge and Baer argue against proposals that either significantly expand or jettison the special Chevron two-step framework. The authors' main prescriptions are friendly amendments to the Court's practice and recommendations that judges rethink basic doctrines of statutory interpretation in light of the modern administrative state.

Vetogates and American Public Law

In this article, I explore the ramifications of a vetogates model of the legislative process. The vetogates model focuses on the many points in the legislative process where proposed legislation can be stopped (vetoed). A political system where statutes must pass through a variety of filters, each motivated by somewhat different incentives and interests, is one where (1) statutes are hard to enact; (2) statutes that are enacted will tend to have compromises, logrolls, and delegations; and, (3) once enacted, statutes are hard to repeal. These consequences represent a significant cost of the vetogates model to our system of governance, but they also carry some potential benefits. I explore the ramifications of the vetogates model for legal doctrine. For example, the vetogates model supports judicial consultation of legislative history in statutory cases and suggests the virtue of deliberation-rewarding canons for judicial review of agency statutory interpretations.

Texas Versus Federal Law on Deference to Administrative Interpretations of Statutes

The growth of the administrative state in recent decades means that the issue of deference to an agency’s interpretation of a statute it enforces arises in many contexts. As the issue of agency deference pervades Texas’s legal system, courts and litigants will need to understand when agency statutory interpretations merit deference. As this article shows, Texas’s doctrine on deference to agency statutory interpretations is not as developed as the federal doctrine. However, the Texas Supreme Court in Railroad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water recently began to develop a comprehensive doctrine on deference to state agency statutory interpretations. Texas Citizens has the potential to become the Court’s seminal decision on agency deference, as it consolidated Texas’s three lines of precedent in this area and began to flesh out a comprehensive standard for agency deference. The Court also explained that while Texas has never “expressly adopted” the federal Chevron doctrine for agency deference, the “analysis” used by Texas “is similar.” Thus, even though Texas has not adopted the federal Chevron standard, Texas courts and litigants will need to familiarize themselves with both Texas and federal law on agency deference. Although there has been a mountain of scholarship on the federal Chevron doctrine, there has been surprisingly little commentary on Texas law regarding deference to agency statutory interpretations. To date, no one has canvassed the Texas Supreme Court’s precedents on agency deference, much less compared them to historical or existing federal doctrine. This article’s novel comparative examination between Texas and federal law illuminates many facets of Texas’s doctrine on agency deference. Texas Citizens is the Court’s clearest articulation of Texas law on deference to agency statutory interpretations, and it is the first case that actually grapples with how Texas law is similar to and different from the federal Chevron doctrine. That said, Texas Citizens leaves open many important questions on agency deference. This article seeks to identify and clarify these open issues. Texas and federal law agree on four core prerequisites for agency deference. Beyond that, Texas leaves open many questions on deference to agency statutory interpretations that federal law has already addressed – rather than outright rejecting these facets of the federal doctrine. And Texas may yet recognize even more prerequisites for deference than federal law. This article concludes by considering what Texas administrative law would look like if Texas adopted the federal Chevron doctrine, and it posits the counter-intuitive suggestion that this actually would not change Texas law all that much because federal law has moved closer to Texas on agency deference in the past decade.

Overlapping and Underlapping Jurisdiction in Administrative Law

Congress regularly enacts statutes that share government authority among many political institutions. This paper analyzes how administrative law does and should treat agency statutory interpretation in these overlapping and underlapping jurisdictional schemes. Shared jurisdiction statutes alter the incentives of administrative agencies, and can sometimes be effective tools for managing the principal-agent problems inherent in delegation. Unfortunately, judges regularly employ interpretive practices that undermine, rather than support these regimes. Particularly, in the context of Chevron doctrine - where problems of this sort arise most often - current judicial practices are in tension with the most sensible reconstruction of congressional intent.

Between Facts and Norms: Agency Statutory Interpretation as an Autonomous Enterprise

Between Facts and Norms: Agency Statutory Interpretation as an Autonomous Enterprise

Mead and the Prospective Exercise of Discretion

This article offers a skeptical assessment of United States v. Mead Corp., 121 S.Ct. 2164 (2001). In Mead, the Court undertook to clarify the manner in which courts should review administrative agency pronouncements that lack the force of law, such as interpretive rules, general statements of policy, and advice letters. Mead exempts those pronouncements from the familiar test of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), under which an agency's statutory interpretation should be upheld if the statute is ambiguous and the agency's interpretation is reasonable. Instead, according to Mead, courts should review interpretations rendered in these nonbinding formats using the so-called Skidmore test, under which the court may construe the statute on its own authority but should give weight to the agency's views (Skidmore v. Swift & Co., 323 U.S. 134 (1944)). The article maintains that this rule fits together poorly with the Chevron formula as it has come to be understood. Chevron has evolved into an amalgam of ordinary statutory construction (used to determine whether the statute is ambiguous) and oversight of the agency's exercise of discretion (used to determine whether the interpretation is reasonable). In practice, the latter step overlaps the inquiry into whether the agency's position was arbitrary or capricious. At the first stage of Chevron analysis -- which deals with whether the statute is ambiguous -- the shift to Skidmore probably will not matter very much. Under either test, the court is expected to apply traditional tools of statutory construction, giving a small edge to the agency. Minor variations in emphasis as to how deferential the court should be while performing this task are unlikely to affect outcomes very much. Instead, the distinction between Chevron and Skidmore deference is likely to matter more at the second stage -- where the statute has been deemed ambiguous. In that situation, someone will have to use creativity to ascribe a meaning to the statute. At least in theory, it should make a difference whether the court allows the agency to be the primary decisionmaker (per Chevron) or retains that responsibility for itself (per Skidmore). However, the article goes on to claim that, in most of these situations, the answer given by Mead is wrong. The agency's resolution of what is acknowledged to be a statutory ambiguity is closely intertwined with its exercise of statutory discretion. The reviewing court should not use Skidmore review to displace that discretion. Regardless of whether the agency has already exercised its delegated authority or has merely announced the manner in which it intends to exercise it in the future, Chevron should apply. Mead mistakenly treats nonbinding actions as an inferior form of administrative behavior -- to which, therefore, the court owes less respect. Those actions should rather be seen as fundamentally similar to binding actions, even if reviewed at an earlier stage of implementation. It is true that many nonbinding pronouncements contain only interim interpretations, as to which the agency has not fully thought out its position. However, finality and ripeness defenses should keep those pronouncements from being reviewed at all. Where, on the other hand, an interpretation is settled enough within the agency that the challenger can overcome finality and ripeness problems, the argument that the interpretation is only a work in progress, and thus deserves little deference, loses much of its force. The foregoing analysis applies primarily to regulatory schemes in which the statute is implemented exclusively by the agency in the first instance, and the court's only function is to review the agency's decisions. The article concludes by examining administrative schemes in which the agency shares implementation authority with courts or other entities. In these latter situations (one of which underlay the Skidmore case itself), the Skidmore test can appropriately play a substantial role.

A Framework for Judicial Review of an Agency's Statutory Interpretation: Chevron, U. S. A., Inc. v. Natural Resources Defense Council

A Framework for Judicial Review of an Agency's Statutory Interpretation: Chevron, U. S. A., Inc. v. Natural Resources Defense Council

Chevron's 51 Imperfect Solutions

In June 2024, the U.S. Supreme Court eliminated the judicial deference federal agencies previously received for their statutory interpretations, overturning the Court’s landmark 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. While Chevron was never binding on state courts, where the balance of powers and state constitutions may require different or no deference to agencies, numerous states have adopted Chevron deference, Skidmore weight, or similar deference regimes for judicial review of agency legal interpretations. Despite these developments, little scholarly attention has been paid to how and why states have developed administrative law’s deference doctrines, how the doctrines have changed over time, or how they may further evolve in light of Chevron’s demise at the federal level. In our contribution to this Fourth Annual Public Law in the States Conference, we provide a literature review of and update on the scholarship to date. Ultimately, we encourage states to not follow the Supreme Court in lockstep when it comes to judicial review of agency statutory interpretations. Federal and state governments differ in important respects, and judicial deference similar to Chevron may still have great benefits in at least some states. We also present the preliminary findings from a comprehensive dataset that one of us, Neena Menon, has compiled on judicial deference in state courts that examines the relationship between state-level politics and the corresponding changes in deference regimes. This dataset provides a more nuanced look at the political ties of state courts that choose between different deference regimes. These political dynamics are especially important to our understanding of Chevron as a politically motivated doctrine—one that conservatives seemed to embrace originally and have since criticized (and perhaps vice versa for progressives). Tracking the political makeup of state courts during times of deference regime change can show whether and how the politics of courts can affect the relationship between states’ judicial and executive bodies.