Chevron and Deference in State Administrative Law

32 Pages Posted: 6 Nov 2014

See all articles by Aaron J. Saiger

Aaron J. Saiger

Fordham University School of Law

Date Written: November 5, 2014

Abstract

Chevron v. National Resources Defense Council (1984), notwithstanding the overwhelming impact it has had in federal administrative law, has not been embraced with enthusiasm or consistency in the states. This is true notwithstanding that state systems of administrative law track their federal counterpart in so many other key respects. This Essay surveys the many reasons why Chevron falls short of providing a useful framework for state judicial review of state agency action. The executives, legislatures, courts, statutes, and bureaucracies of the states are different from those of the federal government in ways that fit poorly with Chevron’s approach to judicial deference.

Ironically, the conclusion that Chevron is not the obvious model for deference doctrine in the states points not to a limitation of Chevron but to its great virtue. Chevron simultaneously addresses several different kinds of administrative-law problems with theoretical plausibility, pragmatism, and deeply contextualized analysis. The same multidimensionality that makes Chevron deeply potent as federal administrative-law doctrine, even to its detractors, makes it less likely to fit the (only) somewhat different context of the states. The Chevron rule is bespoke doctrine, unsuited for drag-and-drop application even into other fairly similar political systems, precisely because it is exquisitely attuned to its own context.

At the same time, Chevron’s multivalence and contextualism are virtues that deserve and demand emulation by the states. States ought to mimic Chevron not by adopting its holding, but by thinking about what Chevron thinks about: how their legislatures operate, how their executives govern, how much scope their agencies have, what limits agency power, and what their agencies are capable of. State judges should seek, as Chevron sought, to find an approach to deference that is an equilibrium characterized by practical wisdom and that can coherently fit with the answers to all of these questions.

Keywords: administrative law; state administrative law; state constitutional law; rules review; Chevron v. NRDC; separation of powers; nonunitary executives; OIRA

Suggested Citation

Saiger, Aaron J., Chevron and Deference in State Administrative Law (November 5, 2014). Fordham Law Review, Vol. 83, No. 555, 2014; Fordham Law Legal Studies Research Paper No. 2519522. Available at SSRN: https://ssrn.com/abstract=2519522

Aaron J. Saiger (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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