The Constitution of Agency Statutory Interpretation

Abstract

Some legal scholars have argued that Chevron deference charts the boundary between law and policy. According to this view, when a statute can support multiple readings (Chevron step one) and each of those readings is objectively reasonable (Chevron step two), the choice between those reasonable readings is an exercise in policymaking, not legal interpretation. Chevron deference thus authorizes federal agencies to select whatever reading of the statute best accords with their own independent policy preferences.

Not all scholars accept this understanding of Chevron deference. In an article published recently in the Vanderbilt Law Review, Professor Aaron Saiger contends that Chevron does not authorize agencies to base their statutory interpretations on extraneous policy considerations because agencies always bear an ethical obligation to seek the “best interpretation” of the statutes they administer.

This invited Response Essay endorses Professor Saiger’s central thesis while proposing some friendly amendments that are designed to fortify his argument. I argue that the obligation to set aside extraneous policy considerations in agency statutory interpretation is a genuine legal obligation that rests on constitutional foundations. Because the Constitution prohibits Congress from empowering federal agencies to make law without supplying an intelligible principle to channel agency discretion, agencies bear a corresponding obligation to follow Congress’s statutory guidance and other relevant legal norms in good faith rather than pursue their own independent views of wise policy.

Drawing on the important distinction between “statutory interpretation” and “statutory construction,” I argue further that agency statutory construction occupies a space between interpretation and policymaking. When agencies engage in statutory construction, they serve as collaborators with Congress in the construction of a statute’s legal meaning. Nonetheless, even when agency statutory constructions qualify for Chevron deference, agencies are legally obligated to use their best judgment to fulfill their discretionary statutory mandates, not to pursue their own independent policy agendas or the political objectives of the incumbent administration.

Keywords: Statutory Interpretation, Statutory Construction, Administrative Law, Legislation, Chevron Deference