Statutory interpretation or public administration:: How Chevron misconceives the function of agencies and why it matters

• 成果类型: Article
• 署名作者: Foote, Elizabeth V.
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2007
• 页码: 673-724
• 关键词: deference; mead

摘要

By its Chevron doctrines, the Supreme Court reconceived the core function of administrative agencies as statutory construction, modeled on the judicial process, instead of the actual legal function of public administration, which is operational implementation of statutory programs. Since statutory construction by tradition lies within the domain of the courts, the Court's reconception of administrative work transferred sources of law on judicial review and administrative procedure from institutionally savvy statutes, principally the Administrative Procedure Act (APA) and enabling acts, to the Court's own judge-made canons. Because those canons are founded on a false paradigm of public administration as statutory construction, they have had pernicious effects, including reshaping agency procedures in ways that frustrate values of public administration, promoting excessive amounts of judge-made law on the meaning of regulatory statutes, and minimizing judicial oversight of administrative work for basic rationality. After decades of relentlessly using Chevron's tests designed for statutory construction to supervise the operational acts' of public bureaucracies that are charged with the substantially different task of carrying out statutory programs, the Supreme Court last Term decided several cases that break from Chevron's misconception. The Court revived the framework of judicial review from the formative, pre-Chevron era, when the APA dominated judicial review. That development is heartening. The earlier framework is more attuned to the actual legal function of public administration and it relies on the comparative institutional strengths of agencies and courts. The statutory framework of the APA works better than the judge-made Chevron canons of the Supreme Court, and it is, after all, the scheme that Congress enacted into law. Statutes are the way out.