PDF《Duke Law Journal》

BRESSMAN IN FINAL2.

DOC 12/8/2008 2:25:12 PM Duke Law Journal VOLUME

58 JANUARY

2009 NUMBER

4 CHEVRON'

S MISTAKE LISA SCHULTZ BRESSMAN? ABSTRACT Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation―whether intentionalism, purposivism, or textualism―and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as if Congress intended that text to have a relatively specific meaning. The presumption of a specific meaning does not match the reality of how Congress designs regulatory statutes. Congress is more likely to eschew specificity in favor of agency delegation under certain circumstances―for example, if an issue is complex and if legislators can monitor subsequent agency interpretations through administrative procedures. Although Copyright ?

2009 by Lisa Schultz Bressman. ? Professor of Law, Vanderbilt Law School. For helpful comments and discussions, I thank Rachel Barkow, Michael Bressman, Bill Eskridge, John Goldberg, Maggie Lemos, Jerry Mashaw, Cathy Sharkey, Suzanna Sherry, Kevin Stack, Matthew Stephenson, Cristina Rodriguez, Adrian Vermeule, Ernie Young, as well as participants at the Duke University School of Law faculty workshop, the Georgetown Law Center legislation seminar, the Harvard Law School faculty workshop, and the New York University Law School Colloquium on Public Law. For excellent research assistance, I thank Leah Bressack and John Greer. BRESSMAN IN FINAL2.DOC 12/8/2008 2:25:12 PM

550 DUKE LAW JOURNAL [Vol. 58:549 Chevron recognizes such delegating factors, it fails to sufficiently credit them. Even United States v. Mead Corp., which makes delegation the key question, falls short. This Article imagines what interpretive theory would look like for regulatory statutes if it actually incorporated realistic assumptions about legislative behavior. The theory would engage factors such as the complexity of the issue and the existence of administrative procedures as indications of interpretive delegation more satisfactorily than existing law does. In the process, it would produce a better role for courts in overseeing the delegation of authority to agencies. TABLE OF CONTENTS Introduction

550 I. The Dominant Theories and Their Administrative Law Doctrine

559 A. The Search for Statutory Meaning.559 B. The Possibility of Agency Delegation

566 C. The Possibility of Deliberate Ambiguity.571 II. A Delegation-Respecting Theory

575 A. Reasons for Interpretive Delegation.576 B. Conditions of Interpretive Delegation

580 C. Application Issues.583 1. Scope of Agency Interpretive Authority

583 2. Reasonableness of Agency Interpretations

585 3. Exercise of Judicial Interpretive Authority

586 III. Illustrations.589 A. Zuni Public School District No.

89 v. Department of Education.589 B. Gonzales v. Oregon.597 IV. Objections and Responses.602 A. Institutional Costs.605 B. Nondelegation Issues.609 1. The Nondelegation Tools.610 2. The Normative Difficulty.613 3. The Administrative Law Alternative

617 Conclusion.619 INTRODUCTION Statutes that delegate authority to administrative agencies are different from the rest. Congress may delegate to an agency not only the authority to implement the statute but, implicitly, the authority to BRESSMAN IN FINAL2.DOC 12/8/2008 2:25:12 PM 2009] CHEVRON'