Title

Review of Agency Interpretations: The Difference Discovers Itself

Abstract

The Supreme Court regularly reviews agency interpretations of statutes. For many years, the official dogma of the Court was one of deference to reasonable agency interpretations of ambiguous statutes – the so-called “Chevron doctrine.” After Mead and Christensen, the Court was open to other levels of respect for agency interpretations. Recently, cases have so emphasized the particular statutory construction methods of the individual justices that the agency interpretation of a statute is now on the level of legislative history or other aids to interpretation, such as canons, which may or may not be used at a justice’s option. The array of treatments of the agency interpretation - no deference, Chevron or Skidmore deference, or even no mention at all - makes it easier to impose judicial views that bind or will not bind in the future as a judicial declaration of “what the law is” under Marbury v. Madison. Agency interpretation is no longer the preferred method to resolve ambiguity in a statute.

This article traces this development by first examining what the Christensen and Mead cases theoretically did. Part III examines the status of deference to agency decisions in practice in the Supreme Court in the last two years, namely 2003 and 2004. In Part IV, the article places the debate in the context of the two theories of judicial discretion and statutory interpretation. Part V concludes that agency interpretation has become analogous to a mere canon of construction.

Disciplines

Administrative Law

Date of this Version

March 2005