Confessions of an Administrative Law Pollyanna, by Richard J. Pierce Jr.

by Guest Blogger — Tuesday, Jan. 16, 2018

Viewed from the perspective of a student preparing to take a final exam in administrative law, the doctrinal status quo with respect to judicial review of agency actions is a confused mess. Courts apply, and scholars debate, at least two versions of Skidmore, at least five versions of Chevron, and a constantly evolving version of Auer. I do not envy students who must identify, interpret, and apply a review doctrine to some hypothetical dispute their professor put on an exam.

That doctrinal mess looks very different, however, to a professor who places a high value on a system of administrative law that includes a healthy relationship between agencies and reviewing courts. I read every Supreme Court and circuit court opinion on administrative law and a high proportion of the scholarship in the field. I see a doctrinal mess that works pretty well because it has all of the critical ingredients.

Every doctrine and every opinion I read requires the agency to anchor its action in the language of a statute.

Every doctrine and every opinion I read requires the agency to support its action with evidence in the record.

Every doctrine and every opinion I read requires the agency to explain its action adequately with reference to statutory language and evidence in the record.

Courts increasingly attach significance to continuity and increase the burden on the agency to explain an action when the agency departs from settled policy. The Supreme Court’s recent opinions in cases like Encino Motors v. Navarro, 136 S.Ct. 2117 (2016), strongly suggest that the Justices have rejected the view expressed in the majority opinion in FCC v. Fox Television Stations, 556 U.S. 502 (2009), in favor of the view expressed in the dissenting opinion in that case.

There is persuasive empirical evidence that circuit courts consider continuity an important factor in favor of upholding an agency interpretation of a statute. In their study of 2,272 circuit court opinions, Barnett and Walker found that circuit courts uphold longstanding agency policies far more frequently than new or changed policies. They also found that courts attach about the same significance to agency continuity when they apply Skidmore—a doctrine that includes continuity as a factor—and when they apply Chevron—a doctrine that purports to exclude continuity as a factor. 116 Mich. L. Rev. 1, 61-65.

Considering continuity as a factor in favor of upholding an action and lack of continuity as a factor that triggers application of a particularly powerful version of the duty to engage in reasoned decision making is particularly important in a politically polarized country. Presidential elections have, and should have, consequences. Those consequences should not include major changes in law and policy that are motivated solely by politics, however.

If courts do not require agencies to give plausible reasons for changes in policy, the administrative state could evolve into a governmental structure in which policy decisions are based solely on some combination of influence peddling by donors to political campaigns and pandering to the passions of some faction that has temporarily obtained control of the agency decision making process. At present, agency decision making is controlled by a President who is attempting to implement the policy preferences of the roughly one-third of the electorate that anchors the far right of the political spectrum. Given the way that our primary system chooses candidates, the next President could easily be someone who attempts to implement the policy preferences of the roughly one-third of the electorate that anchors the far left of the political spectrum.

It is not healthy for a country to lurch from far right to far left and back every time the White House changes hands. Courts can and should temper modestly that tendency of a politically polarized country by requiring that agencies give logically plausible and lawful reasons in support of every change in policy.

I enjoy participating in debates about the appropriate doctrine courts should apply when they review agency decisions, but it is important to keep those debates in context. I hear too many heated arguments about Chevron from people who have never read the opinion in which the Court announced the doctrine.

Courts conferred some degree of deference on agencies long before the Court decided Chevron for good reasons. Judges typically have no expertise relevant to a policy decision the court is called upon to review. The judges’ only knowledge of the regulatory regime the agency is implementing usually is attributable only to the infrequent occasions when they have reviewed an action taken to implement a complicated regulatory statute. It would be nuts for the judges to ignore completely the views expressed by agency decision makers who often have relevant expertise and who often have devoted hundreds or thousands of hours to study of the issue.

When we debate administrative law doctrine, we are working at the margins of the important relationship between agencies and courts. Whether that relationship is defined with reference to Skidmore, to some combination of Chevron and State Farm, or with reference to any of the other doctrines that scholars have urged, the basic relationship is healthy.

Richard J. Pierce, Jr. is the Lyle T. Alverson Professor of Law at George Washington University Law School.

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