Sunstein Articles Supporting Chevron Deference (1/18/21)

Readers of this blog know that conservative and libertarian judges have noised since around 2000 that the Chevron “Framework” derived from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) is variously unconstitutional or illegal and should be junked.  The Chevron Framework basically requires, in a two-step format, that courts defer to reasonable agency interpretations of ambiguous statutory text.  The Framework is more nuanced, but I think the description is a sufficient high-level overview of the Framework for purposes of this blog.

 A lot of claims are made about the Chevron Framework being illegal and unconstitutional.  One of the most persistent claims is that Chevron deference violates the APA command that “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.”  5 U.S.C. § 706.  Solely on the basis of that statutory text, the anti-Chevronists claim that a court reviewing agency actions based on agency interpretation of ambiguous statutory text must interpret the ambiguous statutory text de novo rather than defer to agency interpretation.

I have argued against this “interpretation” (if you will) of § 706.  See Townsend, John A., The Report of the Death of the Interpretive Regulation Is an Exaggeration (August 23, 2020). Available at SSRN: https://ssrn.com/abstract=3400489.  In that article, I review the history of deference before enactment of the APA in 1946 and after the enactment of the APA.  See pp. 71-79, beginning here.  I further argue that § 706 is not inconsistent with deference to reasonable agency interpretations.  See pp. 92-95, beginning here.  (Note that I err in my opening statement that "Here are my reasons for rejecting any notion that deference is consistent with § 706;"  the correct statement (with correction in red will be corrected in the next draft) is "Here are my reasons for rejecting any notion that deference is inconsistent with § 706;" actually my argument is that deference before and after Chevron is consistent with § 706.)

I write today to advise readers of a recent articles regarding Chevron, one of which covers the same ground.  The two articles are by Professor Cass Sunstein. a leading administrative law scholar (Wikipedia here).  In the first article, Professor Sunstein reviews the same trajectory and arguments I make in my article with the same conclusion – that deference to reasonable agency interpretations is consistent with § 706 (whether referring to the intent of Congress or original public meaning of Congress).   Sunstein, Cass R., Is Chevron Inconsistent with the APA? (December 4, 2020). Available at SSRN: https://ssrn.com/abstract=3742429.  See also my article, p. 94 n. 378, here (citing another Sunstein article, with others, on the basic point that deference is consistent with § 706.

Further, not only is Chevron consistent with § 706, Professor Sunstein also argues in a separate article that even if it arguably were not (or at least could not be conclusively shown to be consistent), rejecting Chevron deference at this date would be imprudent.  Sunstein, Cass R., On Overruling Chevron (November 1, 2020). Available at SSRN: https://ssrn.com/abstract=3723681.  In the article Sunstein concludes (pp. 14-15, footnote omitted):

Conclusion

                There is no question that many people, in the Supreme Court and elsewhere, are deeply uneasy about Chevron. No source of law clearly supports the idea that courts should defer to agency interpretations of ambiguous statutory provisions, and there is an argument that separation of powers principles forbid courts from doing that. To be sure, a careful investigation of the APA, and its history, suggest that Chevron is not the transgression that many people believe it to be.92 To be sure, the constitutional objections run into serious trouble once we recall that Congress often has explicitly given interpretive authority to an administrator, as in the formulation “source (as defined by the Secretary).” That kind of grant of authority should be seen as part of what is, almost all of the time, a permissible conferral of discretion.

                But let us stipulate that reasonable people believe that Chevron is wrong. Even if they are right, the argument for overruling it is not strong. Reasonable people also believe that it is right. If it has not proved entirely workable, the alternatives would not be exactly workable, either. It cannot easily be said that other developments, or changed circumstances, strongly argue for overruling Chevron. Congress has long legislated against the background set by the decision, and agencies have long promulgated regulations against the same background. A new scope of review doctrine, and a flat declaration that questions of statutory meaning are “for courts,” would raise a host of new questions and problems – and would also politicize interpretation of federal law within the courts of appeals.

                Nonetheless, a degree of domestication makes a great deal of sense. Building on existing doctrines, I have emphasized the importance of a firm Step One, a serious barrier to unreasonableness under Step Two, and use of canons of construction of multiple sorts. Limitations of this kind will—and should—remain a work in progress. What is true and best in this year may not be what is true and best ten years hence. But the general goal is clear: to ensure the primacy of congressional instructions, to forbid arbitrariness, and to use time-honored principles—along with some new ones—to cabin the exercise of agency discretion.

JAT Comments: 

One thing I advert to in discussing § 706 above is Congress’ intent and original public meaning of the text of § 706.  There has been a lot written (some by me) on the two, with original public meaning being the currently popular proper referent in statutory interpretation.  (See John A. Townsend, Federal Tax Procedure Book 12 (Practitioner Edition 2020), here; see also John O. McGinnis & Michael B. Rappaport, Unifying Original Intent and Original Public Meaning, 113 Nw..U.L. Rev. 1371 (2019) (attempting to unify the two).

Despite the current popularity of original public meaning rather than congressional intent, Chevron’s Step One is usually stated “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”  Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984) (bold-face supplied by JAT).  In Chevron deference cases, that formulation of the inquiry -- intent -- is picked from Chevron and repeated, almost by rote, without any apparent concern as to the differences, if any, between intent and original public meaning.  I have not found a lot of discussion over the issue, but did find this in Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1531 n. 128 (2019), here:

Professor Farnsworth, Guzior, and Professor Malani make the related point that Chevron ambiguity might rest on intentionalist considerations rather than textual ones: "In this case the intent of Congress, rather than the public meaning of the text, probably is the more important benchmark if there is a conflict between them, because giving effect to the intent of Congress is the most widely accepted rationale for the Chevron doctrine." Farnsworth, Guzior, and Malani, 2 J Legal Analysis at 281 (cited in note 9).

The complete cite is Ward Farnsworth, Dustin F. Guzior, and Anup Malani, Ambiguity about Ambiguity: An  Empirical Inquiry into Legal Interpretation, 2 J Legal Analysis 257, 276–77 (2010); the article may be viewed here.  I have not fully considered the Farnsworth article, but Chevron was decided before the ascendancy of original public meaning in statutory interpretation and hence may be just a vestige.  It would seem to me that, for statutory interpretation, whether in a Chevron context or otherwise, the referent should be the same -- either to intent or original public meaning.  Of course, as a practical matter, the two referents may point to the same interpretation but at least conceptually they may not, otherwise why all the brouhaha about original public meaning?