The APA and the Assault on Deference

Abstract

Recently, in Kisor v. Wilkie, a concurring opinion by Justice Gorsuch argued at length that § 706 of the Administrative Procedure Act prohibits judicial deference to administrative interpretations of law. That section states that “the reviewing court shall decide all relevant questions of law.” This issue remained unresolved in Kisor, but the Supreme Court may well return to it soon as a potential argument against the validity of Chevron deference. Although a substantial academic literature has supported Gorsuch’s position on the APA question, this article disagrees with it. It argues that the text of § 706, surrounding statutory provisions, the legislative history, the case law background, and post-APA reactions all fail to support Justice Gorsuch’s thesis. To the contrary, a substantial tradition of deference antedated the Act, and Congress, not being particularly concerned about this issue, left that tradition undisturbed. The article concludes by arguing that Chevron deference, although not precisely foreseen when the APA was enacted, makes a reasonable extrapolation from that era’s doctrines and is consistent with § 706.

Keywords: Administrative Procedure Act, deference, judicial review, administrative law, interpretation, Chevron, Auer