The Specification Power

44 Pages Posted: 6 Aug 2018 Last revised: 24 Apr 2020

See all articles by Ilan Wurman

Ilan Wurman

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: March 19, 2019

Abstract

When agencies implement their statutes, administrative law doctrine describes what they do as interpretation. This raises the question of how much deference courts ought to give to such agency interpretations of law. This Article claims, however, that something else is usually going on when agencies implement statutory schemes. Although agencies interpret law, as they must, as an incident to enforce the law, agencies also exercise another power altogether: an interstitial lawmaking, gap-filling, policymaking power, a power that I shall call the “specification power.” This Article aims to advance existing accounts of agency activity and judicial deference by demonstrating that agencies exercise distinct powers of law-interpretation and law-specification when implementing a statutory scheme. Most significantly, it provides a constitutional account for why agencies may exercise this specification power as a formalist matter, even if they cannot have final say over the interpretation of law. If this account is correct, then calls to overturn modern judicial deference may be overblown if agencies are usually exercising their powers not of interpretation, but of specification.

Keywords: administrative law, chevron deference, chevron v NRDC, interpretation, specification, specification power, completion power, delegation, Wayman v Southard, prerogative power, legal realism, formalism, originalism, Article III, judicial power, separation of powers, nonexclusive legislative power

Suggested Citation

Wurman, Ilan, The Specification Power (March 19, 2019). 168 University of Pennsylvania Law Review 689 (2020), Available at SSRN: https://ssrn.com/abstract=3226964 or http://dx.doi.org/10.2139/ssrn.3226964

Ilan Wurman (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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