45 Pages Posted: 8 Dec 2018
Date Written: May 7, 2018
By according agencies the power to interpret the law, Chevron deference increases the power of administrative agencies. Yet agencies may not always want the benefits of Chevron deference. If the agency is a party in a lawsuit, it might decide not to seek Chevron deference in the hope that the court will reverse its binding policy. Following the inauguration of President Donald Trump, the Federal Communications Commission did just that in Global Tel*Link Inc v FCC, a lawsuit concerning regulations of calling services at correctional facilities. At least initially, the DC Circuit did not apply the Chevron framework because the agency did not seek it. This Comment looks at the novel issue raised by Global Tel*Link — namely, Chevron waiver, the idea that an agency’s decision not to seek deference can prevent the application of the Chevron framework.
Chevron waiver can appear in many forms: a failure to raise or a disclaimer of a right to deference could waive Chevron. Sometimes the agency itself waives, and sometimes another official has litigating authority. Different agencies may have litigating authority, and a failure to make arguments at any of the Chevron framework’s steps could amount to Chevron waiver. Moreover, there are many possible motivations for the policy reversal, from new technical conclusions, to interest group lobbying, to intra-administration conflicts, to the post-presidential transition reversal in Global Tel*Link.
As a possible new threshold inquiry before the Chevron framework is applied, Chevron waiver would inhere at Chevron Step Zero. But the doctrinal formulations of Step Zero neither prescribe, imply, nor prohibit the possibility of Chevron waiver. Instead, this Comment looks to a series of rationales that the Supreme Court, when justifying Chevron deference or giving shape to Step Zero, has ascribed to a hypothetical reasonable Congress. Though the rationales made explicit in the Step Zero cases — expertise and agency accountability — do not strongly suggest a resolution to the question of Chevron waiver, a third rationale does. The reasonable Congress wants agency policy change to be channeled through rigorous procedures. Such procedures — like notice-and-comment rulemaking and formal adjudication — help ensure that the agency actually wrestles with technical arguments, more fully deliberates, alerts Congress and interested individuals to a pending action, works with elected officials, and provides a basic opportunity for individual participation in the decision-making. Because Chevron waiver is a means of circumventing these rigorous procedures, this Comment urges courts to apply the Chevron framework when it is warranted despite the fact that an agency does not seek it.
Keywords: Administrative Law, Chevron, Deference, Waiver, Forfeiture, Federal Communications Commission, Global Tel*Link, Chenery
JEL Classification: K12, K41
Suggested Citation: Suggested Citation