Defining Deference Down: Independent Agencies and Chevron Deference

27 Pages Posted: 17 Jul 2006  

Randolph J. May

The Free State Foundation

Abstract

Surprisingly, although the rationale articulated in Chevron in support of the deference doctrine might suggest that independent agencies should receive less deference than executive branch agencies, the question has not been examined in the courts and it has received very little attention in the academic literature. This article begins that examination in the hope of spurring further commentary.

In Part II below, the Article recounts Chevron and its rationale grounding the deference doctrine primarily (but not exclusively) in notions of political accountability inherent in constitutional separation of powers principles. Part III briefly examines the Supreme Court's recent Brand X decision to show how in that particular fact situation, involving a ruling of the FCC, a so-called independent agency, Chevron deference trumped stare decisis. In effect, this allowed the agency to alter the interpretation of a statutory provision that previously had been construed differently by an appellate court. Part IV sketches the skimpy scholarly literature that hints, in light of Chevron's political accountability rationale, that the decisions of independent regulatory agencies should receive less deference than those of executive branch agencies. Part V argues that there is considerable law and logic to support these heretofore underexplored, sparse suggestive comments. Since independent agencies such as the FCC are, as a matter of our current understanding of the law and of historical practice, mostly free from executive branch political control, Chevron's political accountability rationale should imply that statutory interpretations of independent agencies receive less judicial deference.

In light of the peculiar constitutional status of the independent agencies, which often are referred to as the headless fourth branch, Part VI concludes with an explanation as to why a reconception of the Chevron doctrine, which would accord less judicial deference to the decisions of these agencies, is more consistent with our constitutional tradition than is the current conception.

Keywords: Chevron, Chevron Deference, Independent Agencies, Judicial Review

JEL Classification: K20, K23, O30

Suggested Citation

May, Randolph J., Defining Deference Down: Independent Agencies and Chevron Deference. Administrative Law Review, Vol. 58, p. 429, 2006. Available at SSRN: https://ssrn.com/abstract=913729

Randolph J. May (Contact Author)

The Free State Foundation ( email )

P. O. Box 60680
Potomac, MD 20859
United States
301-299-3182 (Phone)
301-299-5007 (Fax)

HOME PAGE: http://www.freestatefoundation.org

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