Thursday, April 16, 2009

More Chevron Portents

One of the interesting things about the Entergy decision that I blogged the other day is that it just straightforwardly expressed the rule of Chevron deference: where a statute is entrusted to an administrative agency like EPA for enforcement, it's up to the agency to resolve ambiguities in the statute. The agency doesn't has to come up with what a court thinks is the best interpretation of its governing statute; only a reasonable interpretation. If ther interpretation is reasonable, a court must uphold it, even if the court thinks a different interpretation is better.

Chevron is just about the most important case in administrative law -- it effected a big transfer of power to the Executive branch at the expense of Congress and the courts. Basically, under Chevron, whenever agency statutes are ambiguous, which happens all the time, the agency gets to decide what they mean.

Chevron's been around since the 1980s, but recently there's been increasing doubt about when the rule applies. It used to apply routinely in administrative cases, but lately the Court keeps creating exceptions to the Chevron rule. In fact, the Court's been chipping away at it in case after case to the point where some serious thought is needed in each case to decide whether Chevron applies. So it was interesting to see the rule just stated without equivocation in Entergy.

Working back to a case from last month, it is equally interesting to see a concurring opinion by Justice Stevens arguing for a pretty major limitation on Chevron deference. He thinks that courts should resolve statutory ambiguities when they involve "pure questions of statutory interpretation" and agencies should get deference only when the matter involves "policymaking" or "interstitial questions." And the funny thing is, Justice Stevens wrote Chevron!

It's curious that the Court can't tell us the rule about when the most important administrative law rule applies.

1 comment:

Anonymous said...

When a statute is ambiguous, the only interpretation that ought to be valid is the one giving the least power to government.

It is simply unreasonable to accept the idea that Congress, in 220 years of experience, cannot write legislation that is simply constructed, and clear and plain in meaning.

The sad truth is that Congress rarely writes legislation - even less often do they actually read them. The administrative agencies that will be implementing the statutes write them, with knowing inclusion of ambiguities.

Although technically lawful, the ambiguities provide color for them to exercise power beyond the intent and text of the language of the laws.

Invariably, the meaning chosen is the one giving them maximum power and authority.

The Debt Collection Improvement Act of 1996, and the 2007 MMSEA are examples. These acts, through extra-textual and extra-intent ambiguous extractions - all fully intended by the administrative agencies who constructed them - have completely eviscerated the Privacy Act of 1974.