Why Agency Interpretations of Ambiguous Statutes Should be Subject to Stare Decisis
Harold (Hank) Greenberg
affiliation not provided to SSRN
April 27, 2011
Tennessee Law Review, Vol. 79, No. 2, 2012
Agencies’ interpretations of ambiguous statutes under Chevron are not subject to a rule of stare decisis. Agencies may interpret and later reinterpret ambiguous statutes without settling the statute’s meaning. This article shows that this regime permits agencies to “interpret” law in legally unprincipled and inconsistent ways and prevents administrative statutes from meaningfully constraining agency policymaking. This article concludes that a rule of stare decisis should govern agencies’ interpretations of ambiguous statutes just as it governs judicial holdings. Taking seriously Chevron’s recognition of agencies’ power to interpret law, the conventional justifications for stare decisis – separation of powers, legislative supremacy, and the consistency of regulatory schemes – apply with equal force to agencies as to courts.
Number of Pages in PDF File: 63Accepted Paper Series
Date posted: June 29, 2011 ; Last revised: January 30, 2012
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