Because the Court will not permit legislative compromise on abortion, neither side seeks it. On the contrary, both gravitate to the extremes.
One of the most important questions within administrative law is whether the Supreme Court will eliminate Chevron deference. But if Chevron deference is eliminated, as I believe it should be, a key question is what should replace it. In my view, there is a ready alternative which makes sense as a matter of law and policy. Courts should not give agencies Chevron deference, but should provide additional weight to agency interpretations that are adopted close to the enactment of a statute or that have been followed for a significant period of time.
Chevron deference is the doctrine that provides deference to an administrative agency when it interprets a statute that it administers. In short, the agency’s interpretation will only be reversed if a court deems the interpretation unreasonable rather than simply wrong. Such deference means that the agency can select among the (often numerous) “reasonable” interpretations of a statute to pursue its agenda. Moreover, the agency is permitted to change from one reasonable interpretation to another over time based on its policy views. In conjunction with the other authorities given to agencies, such as the delegation of legislative power, Chevron deference constitutes a key part of agency power.
There is, however, a significant chance that the Supreme Court may eliminate Chevron deference. Two of the leaders of this movement are Justices Thomas and Gorsuch. But Chief Justice Roberts as well as Justices Alito and Kavanaugh have also indicated that they might be amenable to overturning Chevron. For example, in the Kisor case from this past term, which cut back on but declined to overturn the related doctrine of Auer deference, these three justices all joined opinions that explicitly stated that they thought Chevron deference was different from Auer deference, suggesting that Chevron might still be subject to overruling.
But if Chevron deference is eliminated, what should replace it? The best substitute for Chevron deference would be the system of interpretation employed in the several generations prior to the enactment of the Administrative Procedure Act. Under that system, as explained by Aditya Bamzai in his path-breaking article, judges would interpret the statute based on traditional canons of interpretation, including two—contemporaneous exposition and customary practice—that provide weight to certain agency interpretations.
Under the canon of contemporaneous exposition, an official governmental act would be entitled to weight as an interpretation of a statute (or of the Constitution) if it were taken close to the period of the enactment of the provision. This would apply to government acts by the judiciary and the legislature as well as those by administrative agencies. Thus, agency interpretations of statutes would be entitled to some additional weight if taken at the time of the statute’s enactment.
This canon has several attractive aspects. First, it has a clear connection to originalism. Contemporaneous interpretations are given added weight because they were adopted at the time of the law’s enactment and therefore are thought to be more likely to offer the correct interpretation—that is, one attuned to the original meaning. Second, this canon also promotes the rule of law by both providing notice to the public of the meaning of the statute and limiting the ability of the agency to change its interpretation of the law.
The second canon is that of customary practice or usage. Under this framework, an interpretation of a government actor in its official capacity would be entitled to weight if it were consistently followed over a period of time. Thus, the agency interpretation would receive additional weight if it became a regular practice, even if were not adopted at the time of statutory enactment.
The canon of customary practice has a number of desirable features. While it does not have a connection to originalism, it does, like contemporaneous exposition, promote the rule of law. Once a customary interpretation has taken hold, the public is better able to rely on the existing interpretation and the government is more likely to follow that interpretation.
Second, the customary interpretation may also be an attractive interpretation. That the interpretation has existed over a period of time suggests that it has not created serious problems of implementation that have led courts or the agency to depart from it. While the customary interpretation may not be the most desirable one as a matter of policy, it is unlikely to be very undesirable.
This traditional interpretive approach also responds to one of the principal criticisms of eliminating Chevron deference: that it will give significant power to a judiciary that lacks expertise and can abuse its authority. I don’t agree with this criticism, since I believe that judges are expert at interpreting statutes and are subject to less bias than agencies that exercise not merely executive power, but also judicial and legislative authority.
But even if one believed that the courts were problematic, this arrangement would leave the judiciary with much less power than a regime that provides no weight to agency interpretations. The courts would often be limited by agency interpretations that accorded with the canons—interpretations adopted when the statute was enacted or that were customarily followed. Since those interpretations would be given weight, the courts would often follow them. But while these interpretations would limit the courts, they would not risk the worst dangers of Chevron deference. This interpretive approach would not allow an agency essentially free reign to change its interpretation over time in order to pursue new programs or objectives. Once the interpretation is in place, the agency would not be able to secure judicial deference if it changed the interpretation.
Importantly, this new arrangement would significantly limit agencies from using their legal discretion to modify agency statutes to combat new problems never envisioned by the enacting Congress. For example, when the Clean Air Act was passed, no one had in mind it would be addressed to anything like climate change. Yet, the EPA has used Chevron deference to change the meaning of the statute so that it can regulate greenhouse gases without Congress having to decide whether and in what way that makes sense. Such discretion gives the EPA enormous power to pursue its own agenda without having to secure the approval of the legislative or judicial branches.
In short, if Chevron deference is eliminated, there is a traditional and attractive interpretive approach that can replace it. Hopefully, the Supreme Court will take the step it refused to take in Kisor and eliminate an unwarranted form of deference.