Beginner's Question About Chevron
Bill.Araiza at LLS.EDU
Thu Aug 22 13:49:13 PDT 2002
A really good pre-Chevron article that reinforces Professor Somin's point is Monaghan, Marbury and the Administrative State, 83 Columbia L. Rev. 1 (1983).
Ilya Somin wrote:
> I am no great fan of the Chevron doctrine, but I don't think that this
> statute precludes its deferential approach to agency decisions. The words
> "to the extent necessary to decision," and "all relevant questions of,"
> and "interpret" provide enormous wiggle room for courts to defer to
> agencies if they want to. For example, a court could decide that the
> process of "interpretation" inherently demands a degree of deference in
> some cases because expert agencies are more likely to get the right answer
> than courts. Similarly, it could argue that de novo review is not
> "necessary to decid[e]" the case when an agency has already addressed the
> There are many strong arguments against Chevron, but I don't think that 5
> USC 706 is one of them.
> Ilya Somin
> On Wed, 21 Aug 2002 LoAndEd at AOL.COM wrote:
> > In his separate opinion in Mead, Scalia cites A> nthony, The <A HREF="http://web2.westlaw.com/Find/Default.wl?DB=101765&SerialNum=0106726704&FindType=Y&ReferencePositionType=S&ReferencePosition=9&AP=&RS=WLW2.78&VR=2.0&SV=Split&MT=Westlaw&FN=_top">Supreme Court a> >
> the APA: Sometimes They Just Don't Get It, 10 Admin. L.J. Am. U. 1, 9-11
> > > (1996)</A>. Because I haven't read the Anthony piece, I don't know whether it
> > > should be recommended.
> > >
> > > I can, OTOH, without reservation recommend the recent Supreme Court Review
> > > article on Mead and Chevron by David Barron and Elena Kagan. With respect
> > > to section 706, they include the following footnote, which strikes me as
> > > correct, and which contains helpful additional citations:
> > Section 706 of the APA provides that "[t]o the extent necessary to decision
> > and when presented, the reviewing court shall decide all relevant questions
> > of law [and] interpret constitutional and statutory provisions." 5 USC §§
> > 706. Some scholars have suggested that this provision in fact requires
> > independent judicial review of interpretive judgments, thus precluding
> > Chevron deference. See, e.g., Cass R. Sunstein, Law and Administration After
> > Chevron, 90 Colum L Rev 2071, 2080-81, 2086 (1990); Farina, 89 Colum L Rev at
> > 472-73 (cited in note 54). The issue never has troubled the Court unduly, nor
> > do we think it should. As Sunstein himself concedes, the interpretive
> > decisions that the court shall render under Section 706 may incorporate some
> > measure of judicial deference; the courts, in other words, can decide the
> > relevant legal question by holding that the agency is entitled to deference
> > in some sphere and then policing its limits. See 90 Colum L Rev at 2081 n 46.
> > The APA thus may well leave the level of deference to the courts, presumably
> > to be decided according to common law methods, in the event that an organic
> > statute says nothing about the matter. See John F. Manning, Constitutional
> > Structure and Judicial Deference to Agency Interpretations of Agency Rules,
> > 96 Colum L Rev 612, 635 (1996) (noting that the APA's provisions on judicial
> > review contain "faint expressions of legislative purpose" and "came from a
> > tradition that used flexible common law methods to review administrative
> > action").
> > Marty Lederman
> > Malla Pollack writes:
> > >
> > > Can anyone recommend one or more leading articles dealing with why Sup
> > > Court in Chevron ignored the language of 5 USC Sec. 706 "To the extent
> > > necessary to decisions and when presented, the reviewing court shall . .
> > > . interpret constitutional and statutory provisions ..."
> > > Thanks
Professor of Law and Richard A. Vachon, S.J., Fellow
Loyola Law School
Loyola Marymount University
919 S. Albany St.
P.O. Box 15019
Los Angeles CA 90015
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