Over at Jotwell last week, I highlighted as one of the best new articles in administrative a piece by Aditya Bamzai entitled The Origins of Judicial Deference to Executive Interpretation. This article is forthcoming in the Yale Law Journal next year, and it’s a must-read article for adlaw geeks as Bamzai casts serious doubt on the historical foundations for Chevron deference.

A draft of the article is available here, and here’s a summary of the article from the SSRN abstract:

Judicial deference to executive statutory interpretation — a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council — is one of the central jurisprudential principles in modern American public law. Despite its significance, however, the doctrine’s origins and development are poorly understood. The Court in Chevron claimed that judicial deference’s roots stem back to statutory-interpretation cases from the early Nineteenth Century. Others, by contrast, have sought to locate Chevron’s doctrinal roots in judicial review’s origins in the writ of mandamus. According to the standard narrative, courts in the pre-Chevron era followed a multi-factor and ad hoc approach to issues of judicial deference; there was little theory that explained the body of cases; and the holdings and reasoning of the cases were often contradictory and difficult to rationalize.

This Article challenges the standard account. It argues that the Supreme Court in Chevron, and scholarly commentators since, have misidentified Nineteenth Century statutory-interpretation cases applying canons of construction “respecting” contemporaneous and customary interpretation as cases deferring to executive interpretation as such. It further argues that, although the standard for obtaining a writ of mandamus was central to judicial review in the early Republic, statutory developments in the latter half of the Nineteenth Century (significantly, the enactment of general federal-question jurisdiction in 1875) ultimately mooted the relevance of that standard. Finally, it discusses the intellectual challenges to the traditional interpretive framework in the early Twentieth Century; the Supreme Court’s embrace of these intellectual challenges in the early 1940s; and Congress’s attempt in the Administrative Procedure Act’s standard-of-review provision to reject the Court’s interpretive experimentation and corresponding deviation from the traditional canons. The Article thus seeks to establish — contrary to the suggestion in Chevron and recent cases — that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic. And it contends that the governing statute of administrative law — the APA — was intended to codify the traditional interpretive approach and to reject the experimentation of the 1940s Court. Taken together, these conclusions cast doubt on much of the received wisdom on the doctrinal basis for the rule announced in Chevron.

My Jotwell review of the article is here. As I mention in the review, one of the article’s key contributions is that it “exhaustively rebuts the historical argument that the case law and doctrine prior to the Twentieth Century supports the type of deference now being applied to agency statutory interpretations under Chevron. Instead, as documented in Part II of the article, the interpretive approach was traditionally to defer to executive interpretations of law that are longstanding and contemporaneous. Such ‘respect’ or deference had nothing to do with agency expertise, congressional delegation, national uniformity in the law, or political accountability—the primary rationales invoked today to support Chevron deference. Instead, courts respected longstanding and contemporaneous executive interpretations because, under the traditional canons of statutory interpretation, courts respected longstanding and contemporaneous interpretations in general.”

This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.