Posted on January 4, 2023 by Robert L. Brubaker
Marbury v. Madison established that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Fast forward 163 years, and section 706 of the Administrative Procedure Act also ordained that it is the province and duty of Article III courts to say what the law is when agency interpretations of statutes are appealed:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.
At that time, the leading case on judicial review of agency interpretations of the law, Skidmore v. Swift, likewise honored the principle of judicial primacy to say what the law is, and endorsed permissive deference to agency interpretations, commensurate with their persuasive power, when courts exercise their duty to make independent interpretations of the law.
In 1984, the Supreme Court created a new approach to interpreting what the law is in cases involving judicial review of administrative rules. The familiar two-step deference doctrine in Chevron v. NRDC applies a different test for interpreting statutes depending upon whether the intent of Congress was clear or ambiguous. In cases of statutory silence or ambiguity, courts are instructed to abstain from saying what the law is and instead defer to the agency’s interpretation if it is “permissible” or “reasonable” under the statute.
Chevron compelled judicial restraint in an era of political friction over judicial activism, and at a time when Congress was enacting prodigious, bipartisan, nearly unanimous, regulatory legislation (including most of modern federal environmental law). Its premise is that statutory silence or ambiguity is an express or implied legislative delegation to the politically accountable agency charged with administering a statute to “fill any gap” left by Congress or to “resolve competing interests” unresolved by Congress. Over the ensuing 38 years, though, Chevron has come under increasing judicial, academic, and political scrutiny.
Chevron Step One is relatively uncontroversial: both courts and agencies are bound by the clearly expressed Congressional intent of statutes, whether they like it or not (unless courts find it to be unconstitutional). But ambiguity can be in the eye of the beholder. Is ambiguity too subjective, malleable, or amorphous to determine what the law is, and who decides? It would be difficult to discern consistency in how judges have found ambiguity or the lack of it in applying Chevron. That problem was addressed in the context of the similar Step One for judicial review of an agency’s interpretations of its own regulations (as opposed to its enabling legislation) in Kisor v. Wilkie. There, Justice Kagan wrote a veritable treatise on the application of all the traditional tools of statutory construction, and admonished lower courts that “we mean it” when we say “the possibility of deference can arise only if a regulation is genuinely ambiguous.”
Step Two is the most controversial part of Chevron. Under Step Two, agencies are given a wide swath of unreviewable governance power. In a prolonged era of extreme political polarization and Congressional gridlock, agencies and their excellent lawyers have become highly adept at parsing imprecise terminology and grammar and finding ambiguities in complicated, decades-old statutes. If a reflexive finding of ambiguity without exhausting all the tools of statutory construction is followed by reflexive deference to the agency’s interpretation without a rigorous independent analysis of its reasonableness and appropriateness, the practical result is automatic or mandatory deference. Statutory ambiguity can be turned into an agency superpower that can dwarf the scale and scope of clearly delegated power. This concern plays into the hands of critics of the so-called administrative state. Step Two deference also invites pendulum swings in what a statute requires, as one administration’s interpretation is changed by another’s (as happened in the Chevron case itself and in West Virginia v. EPA, for example).
In reality, the assumption that statutory silence or ambiguity is an implicit delegation of legislative authority is clearly an overgeneralization. There are many more plausible reasons for statutory ambiguity than a Congressional intent to empower an agency with virtually unreviewable legislative policymaking discretion. Poor draftsmanship, political compromise or inability to reach a compromise, the press of Congressional deadlines, cleverly written inserts from anonymous lobbyists, lack of clairvoyance, and scriveners’ errors are a few that come to mind. Others are acknowledged in Chevron and Kisor v. Wilkie. Chevron was decided in favor of then-EPA Administrator Anne Gorsuch. Her son, Neil Gorsuch, sitting as a Judge on the 10th Circuit in 2016, articulated misgivings about Chevron deference in Gutierrez-Brizuela v. Lynch, writing in a very comprehensive concurring opinion that:
[T]he fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design…. [T]he founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights….
Chevron step two tells us we must allow an executive agency to resolve the meaning of any ambiguous statutory provision. In this way, Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty…. For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself.
In the last case announced before his retirement, Pereira v. Sessions, Justice Anthony Kennedy cited his former clerk Neil Gorsuch’s concurring opinion in Gutierrez-Brizuela v. Lynch, in expressing his separation of powers concerns with Chevron deference:
This separate writing is to note my concern with the way in which the Court’s opinion in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), has come to be understood and applied…. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.
While the Supreme Court has not (yet) abandoned Chevron deference, some State court judges have been inspired by these federal judicial criticisms of deference to change their own States’ approaches to statutory interpretation. At the end of its 2022 term, the Ohio Supreme Court issued a landmark State constitutional law and administrative law decision on judicial review of administrative interpretations of statutes and regulations that builds on the separation-of-powers concerns articulated by Justices Kennedy and Gorsuch. The decision squarely rejects all forms of mandatory deference to administrative interpretations of law, and affirms paramount judicial authority to interpret what the law is.
TWISM Enterprises, LLC v. State Board of Registration for Professional Engineers & Surveyors involved a company that sought to designate an independent contractor – not an employee – as being “in responsible charge” of the company’s engineering activities, so that the company could lawfully provide engineering services in Ohio. The State Board of Registration for Professional Engineers & Surveyors interpreted its governing statute and administrative rule to intend that this could not be done with an independent contractor. The Ohio Supreme Court disagreed – declining to defer to the Board’s interpretation of its enabling legislation and its own rule.
In his majority opinion, Justice Pat DeWine recounted how inconsistent Ohio case law has been over the years on the topic of administrative deference, and concluded that the Court’s precedent fails to articulate “any justification or consistent standard for agency deference.” He rejected “all forms of mandatory deference” to administrative agency interpretations, based on the separation-of-powers doctrine enshrined in the Ohio Constitution. Then he clarified the limited circumstances when a court “may” – but is not required to – consider an administrative agency’s construction of a legal text:
- An administrative interpretation should never be used to “alter the meaning of clear text. If the text is unambiguous, the court should stop right there.”
- If a text is ambiguous, a court may consider an administrative interpretation, “along with other tools of interpretation.” But “the weight, if any, the court assigns to the administrative interpretation should depend on the persuasive power of the agency’s interpretation and not on the mere fact that it is being offered by an administrative agency. A court may find agency input informative; or the court may find the agency position unconvincing. What a court may not do is outsource the interpretive project to a coordinate branch of government.” Consequently, “deference in Ohio bears similarities to the rule announced by the United States Supreme Court in Skidmore.”
Concluding Comments
The rule of law is the environment’s best friend. But the rule of law does not exist without an independent judiciary. The separation-of-powers approach to administrative interpretations of the law is no more radical than Marbury v. Madison, the Administrative Procedure Act, and Skidmore v. Swift. It does not portend disruption of administrative agency functions. As then Judge Gorsuch opined in Gutierrez-Brizuela v. Lynch,“in a world without Chevron very little would change—except perhaps the most important things.” An administrative agency can perform well, or even best, when it adheres to manifest legislative authority and limitations. Congress can help with greater legislative transparency and clarity, and genuinely intelligible principles, for agencies to follow. The expectation of statutory clarity appropriate and commensurate with the nature and extent of governance power delegated to an administrative agency seems like a good and workable public policy. But given all of the reasons why legislatures pass ambiguous statutes, the sacred separation of powers principles ordained in both the United States and Ohio constitutions makes it ultimately the province and duty of courts, not agencies, to make definitive and controlling interpretations of what ambiguous statutes really mean.