Review of Agency Determinations of Law

Agencies interpret law all of the time--one could say it is their fundamental task to discern what Congress wanted them to do and do it. Of course, if agencies were the final say on all legal questions, the risks of agency slack would be intolerable. Thankfully, there is an APA provision for that: Section 706 provides that "[t]o 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." In other words, Congress elected in the APA (and many special statutory review statutes) to give courts authority to review agency legal interpretations.

Exactly how courts are to conduct their review of agency determinations of law is an age-old and deeply contested issue in administrative law. You may be tempted to think that the language just quoted from Section 706 says all we need to know--after all, it says "shall decide all relevant questions of law." This language might strike you as supporting something like de novo review. However, the matter is not quite so clear as it might seem. The text is not unambiguous, and there is no doubt that the drafters of the APA wanted to incorporate the pre-existing standards of judicial review, which often were not de novo at all. That does not mean that the de novo reading is wrong, but it does mean that in practice courts have historically toggled between relatively deferential and relatively stringent review of agency determinations of law. For useful background, you would do well to glance at Ronald M. Levin, The APA and the Assault on Deference, 106 Minn. L. Rev. 125 (2021).

It is increasingly difficult to avoid the conclusion that we are at yet another inflection point in this longstanding debate. See Gregory A. Elinson & Jonathan S. Gould, The Politics of Deference, 75 Vand. L. Rev. 475 (2022). For roughly the last 40 years, we have lived in what might be termed the "Chevron Deference Era." This refers to a case--Chevron v. NRDC, 467 U.S. 837 (1984)--that you probably learned about in your Legislation & Regulation class. Simply stated, Chevron required courts reviewing agency determinations of law to first determine whether Congress had spoken directly to the issue in question, and, if so, follow Congress's direction (step 1); then, if Congress had not spoken directly to the question, allow the agency's reasonable interpretation of the statute to prevail (step 2). Chevron provided a relatively simple, rule-like formulation of how courts should treat agency interpretations of law (especially compared to the confusing and erratic review that occurred before Chevron), but it did not prove to be as simple as proponents, like Justice Scalia, had hoped it would be. See Thomas W. Merrill, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State  (2022)(offering a comprehensive review of the many questions Chevron raised and how the doctrine was constructed); see also Gould & Elinson, supra (offering a more politics-based account of Chevron's ebbs and flows).

In this subsection, we pick up midstream and assume the basic Chevron standard is understood. The questions we ask are questions about the degree to which Chevron has eroded or been qualified. Many of the cases here--Mead and City of Arlington--involved attempts to curtail Chevron's "domain." See Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 Geo. L.J. 833 (2001). That is, they accepted Chevron as a legitimate metaprinciple of administrative law, but considered whether there ought to be exceptions or boundaries to the application of Chevron under certain circumstances. Even in these cases, the seeds of a more frontal assault on Chevron can be seen. Kisor can also be read this way--it raises the technically distinct question of whether something like Chevron deference should exist when it comes to agency interpretations of previously promulgated regulations, and it says yes, but with certain limits.

The two final cases bring us fully up to speed with where the Court is on the question of deference. To put these cases in context, note that the last time the Court actually applied Chevron deference and upheld an agency interpretation was Cuozzo Speed Technologies v. Lee, 136 S. Ct. 2131 (2016). It has virtually stopped applying Chevron and the Solicitor General has essentially stopped asking for it, yet the Court has not formally overturned Chevron yet. In fact, the Court has started to invoke a newer doctrine called the "major questions doctrine" to decide that agencies lack authority under their statutes even in cases that look like they would have been prime candidates for Chevron in the past. See Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262 (2022). Even after the two cases we will read, West Virginia v. EPA and Biden v. Nebraska, there are many questions about how this major questions doctrine works: for instance, whether it is an exception to Chevron that still permits Chevron in non-major cases. Lower courts are sorting through these questions now, and the Supreme Court will next term decide whether Chevron ought to be overturned formally in a case called Loper Bright Enterprises v. Raimondo.

We will do our best to provide answers to the puzzle of judicial review of agency determinations of law, but you would probably be best served by going into this subsection with a clear understanding that it is one of the most deeply contested areas of administrative law, and the doctrine is in considerable flux.