CPR Scholars Testify on Judicial Deference to Agency Discretion

by Matthew Freeman

Later today, not one but two CPR Member Scholars will testify today before the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law.

Emily Hammond and Richard J. Pierce both offer some perspective on the limits and scope of judicial deference to federal regulatory agencies. Pierce sketches out the long history of jurisprudence on the subject, noting that,

Until late in the Nineteenth century, courts could not and did not review the vast majority of agency actions. The Supreme Court held that courts lacked the power to review exercises of executive branch discretion. A court could review an action taken by the executive branch (or a refusal to act) only in the rare case in which a statute compelled an agency to act in a particular manner. In that situation, the court was simply requiring the agency to take a non-discretionary ministerial action.  

He then traces the evolution of the Supreme Court’s view, arriving at the landmark Chevron vs. NRDC decision, in which the court framed what is to regulatory scholars a now very familiar test. As Hammond describes it,

The test provides that when a court reviews an agency’s interpretation of a statute it administers, the court must ask first whether Congress has spoken clearly; if so, the clear language controls. If not, the court must uphold the agency’s permissible—that is, reasonable—construction of the statute. The deferential aspect of Chevron in step two has often been criticized, but it is not particularly remarkable. Even prior to the enactment of the Administrative Procedure Act (APA), courts afforded at least some deference to agencies’ legal interpretations in many circumstance.

The majority on the subcommittee, and for that matter, on the full Judiciary committee, takes the general view that regulation and regulators are bad, and that reining in their power is almost always a good thing, certainly while Democrats control the White House, at least. So they’ll find little comfort in the conclusion that Pierce and Hammond each arrive at separately. Pierce says:

I do not see any opportunity for Congress to make beneficial changes in this area of law by statute at present. The courts have ample discretion to make any needed changes or clarifications in this area of law without any changes in the statutes that now govern this area of law. Courts are in the best position institutionally to make the kinds of changes in legal doctrines that would have a realistic chance of improving the legal framework within which agencies make rules and the quality and timeliness of the resulting rules.  

Hammond concurs:

The deference regimes are best understood as part of a larger constitutional framework, within which courts attempt to optimize their reviewing role, the legislature’s desires as expressed in the statutory mandate, and the executive branch’s policymaking discretion. Although tensions can arise between these norms in a given case, the deference regimes overall strike a reasonable balance. Furthermore, the various deference regimes work together to permit courts to tailor their review to the particulars of the agency actions before them. And those deference regimes also work in tandem with the equitable powers of the courts to further ensure a careful consideration of all the interests at stake. Although one can find reasons to criticize how courts apply these standards, any attempt to legislate a change would be even more problematic. No legislative standard can account for all of the variety in administrative law, and a piecemeal approach would severely interfere with the balance between and among the deference doctrines and remedies.  

The hearing will be live-streamed here, beginning at 1:30 p.m. In the meantime, here’s Hammond’s testimony, and here’s Pierce’s testimony. If you're in Washington, and looking to catch the hearing live, it's in 2141 Rayburn.



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