Sunstein Blog and Article Concluding that Chevron Deference is Consistent with Original Public Meaning of the APA (9/19/20)

In my Federal Tax Procedure Book, I deal with administrative law issues, particularly the Administrative Procedure Act (“APA”) and deference.  I have also written articles on the intersection of the tax law with these subjects.  The most recent is Townsend, John A., The Report of the Death of the Interpretive Regulation Is an Exaggeration (August 23, 2020), SSRN: https://ssrn.com/abstract=3400489.

I offer today an excellent blog posting -- Cass R. Sunstein, Chevron Is Not Inconsistent with the APA (Notice & Comment 9/16/20), here.  Sunstein (bio here) is a professor of law at Harvard Law School where he teaches administrative law and has a distinguished career in academia and government.  The linked blog entry is a summary of a key and somewhat startling conclusion he reached in another article published in recently, Cass R. Sunstein, Chevron As Law, 107 Geo. L.J. 1613 (2019), here, (the discussion is on pp. 1641, here, through 1657.

In Sunstein's blog, as well as in his article, Sunstein argues that the APA § 706 requirement that courts “shall decide all relevant questions of law” is not inconsistent with Chevron deference.  Sunstein apparently initially took the literal text of § 706 to mean that courts should decide interpretations of law de novo which eliminate deference to agency interpretations.  Of course, the APA was enacted in 1946, long before Chevron was decided in 1984 (Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984)).  But, as Sunstein claims in his blog (as do I in my article), deference to reasonable agency interpretations much like Chevron deference was a feature of the standard of review in the federal courts before the APA was enacted and § 706 did not affect that standard of review.  As a result, the original public meaning—a mantra for textualists—of § 706 accommodated and allowed deference, much like Chevron deference.  Hence, the conclusion is that the hyperbolic claims about § 706 as mandating de novo judicial interpretation without deference are just wrong. 

Based on his research (tracking my own) he says that there was robust authority for deference at the time of the APA.  He says:  

Nothing in the legislative history of the APA repudiates these decisions. I repeat: Nothing. One more time: Nothing. (In a whisper, a shout: Not a word. Nothing.) That’s stunning. I confess that it astonished me.

And, the trajectory of cases soon after the enactment of the APA carrying forward deference is evidence that no one understood § 706 to have anything to do with deference.

He concludes:

In short: Many people think that Chevron is inconsistent with the original public meaning of the APA. But an investigation of the context makes it exceedingly difficult to defend that view.

JAT Comment:  Exactly.