In the CPI Antitrust Chronicle, Alexander Volokh: Goodbye, Chevron: Rediscovering the Virtues of an Independent Judiciary (behind a paywall, but excerpts available here at Volokh Conspiracy). From the conclusion:
Putting the courts in the driver's seat, and preventing agencies from interpreting statutes in ways that are wrong but not crazy — these are positive moves. Consider, for some perspective, City of Arlington v. FCC, where the Supreme Court confronted whether Chevron applied to an agency's interpretation of the scope of its own jurisdiction or authority. Justice Scalia wrote that the distinction between jurisdictional and non-jurisdictional interpretations is illusory: "No matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority." For courts, the jurisdictional/non-jurisdictional distinction is meaningful: "Whether the court decided correctly is a question that has different consequences from the question whether it had the power to decide at all." But for agencies, that distinction makes no sense: "Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires."
Justice Scalia used that reasoning as an argument in favor of Chevron deference: Because the question of whether the agency acted ultra vires is the same every time the agency adopts an interpretation of its statute, there's no reason to separate out supposedly "jurisdictional" interpretations.
Against the background of his longstanding support for Chevron, this meant Chevron all the time. But one could turn this around and make it an argument against Chevron deference.
The premise and promise of cases like Youngstown is that courts are ready to guard against executive overreach by authoritatively interpreting statutes and holding the government within its proper bounds. The "province and duty of the Judicial Department," says Marbury v. Madison, is, after all, to "say what the law is." But Justice Scalia's reasoning implies that all agency statutory interpretations are created equal; if this is so, then any deference allows the fox to guard the henhouse, and any admission that the agency is wrong-but-not-crazy amounts to acquiescence in ultra vires action.
The Marbury/Youngstown promise of checks and balances works when courts tell the executive what statutes mean — not the other way around. The idea of robust separation of powers sits uneasily with an attitude that the Executive Branch is allowed to be wrong-but-not-crazy. Of course, if there really were a delegation of congressional lawmaking power, that might be acceptable under our current loose non-delegation doctrine; but the idea of anti-delegation canons suggests that such delegations shouldn't be casually allowed as a broad background principle of administrative law.
Posted at 6:31 AM