A shade of deference.

Before the decision in Chevron, U.S.A. v. Natural Resources Defense Council,(1) the Supreme Court had generated two lines of cases describing the deference owed by courts to statutory interpretation by administrative agencies. Sometimes the Court would defer to the agency's interpretation, and sometimes the Court would substitute its judgment for that of the agency.(2) Despite valiant efforts to reconcile the two groups of cases,(3) the better view was that "before 1984, the Supreme Court was unwilling to maintain consistency, or to explain the basis for the inconsistencies, in its many decisions in the area."(4)

Then came the Chevron case. In deciding whether the term "stationary source" of pollution in the 1977 Clean Air Act Amendments referred to smoke stacks or to factories, the Chevron Court set out a two-step process for reviewing agency interpretations of their authorizing legislation:

When a court reviews an agency's construction of the statute it administers, it is confronted with two questions.

First, always, is the question of whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.

If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation.

Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.(5)

Given the ubiquity of ambiguity in regulatory statutes, Chevron looked like a recipe for judicial acquiescence to agency interpretations. It hasn't worked out that way.

Sometimes, to be sure, the Court gives full scope to the doctrine announced in Chevron.(6) Other times, however, the Court virtually ignores the Chevron test.(7) Most important, only three years after Chevron, the Court recognized a major escape hatch from the doctrine of deference to agency interpretation.

In Immigration and Naturalization Service v. Cardoza-Fonseca,(8) the Court rejected the agency's interpretation at stage one of the Chevron inquiry. In a majority opinion, Justice John Paul Stevens, who authored Chevron, wrote that the meaning of the phrase "well-founded fear of persecution" in the statute governing political asylum presented a "pure question of statutory interpretation for the courts to decide."(9) Courts that review agency interpretations must determine whether the statute is ambiguous by employing "the traditional tools of statutory construction."(0)

Chevron, to be sure, states the following: "If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect."(11)

Nonetheless the Cardoza-Fonseca approach to Chevron's first step seems to reduce the agency's interpretation to a mere tiebreaker. As Justice Antonin Scalia wrote in his Cardoza-Fonseca dissent, the majority's "approach would make deference a doctrine of desperation, authorizing courts to defer only if they would otherwise be unable to construe the enactment at issue. This is not an interpretation but an evisceration of Chevron."(12)

Judicial Review

The Cardoza-Fonseca escape hatch invites the judges to do what the courts before Chevron did - decide cases according to policy considerations and then invoke whatever Court decisions support their reasoning. If the reviewing court agrees with the agency, it will emphasize Chevron. If the reviewing court disagrees with the agency, it will characterize the statutory issue as one to be resolved at the first step of the Chevron inquiry, using the "traditional tools" of judicial interpretation.

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon(13) - the celebrated Spotted Owl case - illustrates the indeterminacy of the Chevron doctrine. At issue was the meaning of the term "harm" in the Endangered Species Act. The act prohibits the "taking" of endangered animals and defines "take" to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect[.]"(14) According to Secretary of the Interior Bruce Babbitt, "harm" includes destruction of habitat that has the effect - although not the purpose - of harming endangered wildlife. Oregon business interests challenged this interpretation as contrary to the statute.

Both sides relied on the language, history, and purpose of the statute. The developers pointed out that the U.S. Senate had already rejected language that clearly included habitat destruction as a violation of the act, that the act listed "harm" along with intentional acts such as harassing and wounding, and that Congress had addressed habitat destruction in separate legislation. Babbitt's agency responded that "harm" must add something to the statute - it must mean something other than "kill," "wound," and so on. The term "harm," it said, was inserted without floor debate, after the deletion of the previous habitat destruction provision. The agency also said that because habitat destruction poses the primary threat to endangered species, the overall purpose of the act requires a wider interpretation of "harm."

Both sides have plausible arguments, so one would suppose that Chevron would resolve the issue in favor of the agency. A majority of the Court did uphold his interpretation but relied all but exclusively on the language, history, and purpose of the act. After concluding that the dictionary definition of "harm" meant that "Congress did not unambiguously manifest its intention" to reject the agency's position, the Court almost casually asserted that under Chevron the fact "that the Secretary's interpretation is reasonable suffice[s] to decide this case."(15) The majority opinion, however, then proceeds to discuss the legislative history of the act in great detail - providing pretty suggestive evidence that Chevron did not suffice to decide the case, at least for some of the justices.

Scalia dissented. He was joined by Chief Justice William Rehnquist and Justice Clarence Thomas. The dissenters found the statutory language clear and the legislative history consistent with the text. According to the dissenters, "the regulation must fall - even under the test of Chevron."(16) Evidently, Scalia, who had accused the Cardoza-Fonseca majority of "eviscerating" Chevron, saw no room for agency maneuver within the limits of "harm."

Congressional High Road

The fundamental problem in administrative law is that a congressional majority typically favors some federal response to a problem, but no congressional majority favors any particular response. Rather than do nothing, Congress adopts general language and leaves it to the agencies - and the courts - to make the controversial choices. The Endangered Species Act is a good illustration of this. Congress knew quite well that habitat destruction poses the biggest threat to endangered species. Congress also knew, however, that regulating habitat destruction would conflict with economic development. So Congress waffled. It deleted a clear provision in the statute authorizing limits on habitat destruction and then turned around and inserted the open-ended term "harm."

This seems like a classic case for the Chevron doctrine. The only clear intention Congress had regarding habitat destruction is a clear intention to have no clear intention. The problem calls less for lawyerly interpretations of authoritative language than for a policy decision made by an institution that is familiar with the problem and is held politically, accountable. The agency has the advantage of the courts on both counts.

It is not surprising, then, to discover the real basis of Scalia's dissent in the first paragraph of his opinion: "The Court's holding that the hunting and killing prohibition incidentally preserves habitat on private lands imposes unfairness to the point of financial ruin - not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use."(17) Like Stevens, who wrote the majority opinion, but who earlier threw out the agency's interpretation in Cardoza-Fonseca, Scalia and the other Sweet Home dissenting justices found no ambiguity in a statute when the agency's interpretation clashed with their deeply held preferences about public policy.

Chevron serves not only the values of expertise and accountability; it also promotes uniformity in the interpretation of federal statutes among the circuits.(18) Chevron, however, can promote these values only if it is consistently applied.

In Sweet Home, the agency prevailed - but only after the Court exhausted the "traditional tools" of statutory interpretation. The dissenters would have rejected the agency's interpretation altogether. As Cardoza-Fonseca suggests, Scalia and Stevens are amenable to switching sides when they disagree with the agency's result.

Given this sort of leadership from the Supreme Court, it is perhaps not a great surprise to learn that in Chevron cases in the District of Columbia Court of Appeals - the court that matters most in administrative law - the agency loses one-third of the time.(19)

From a theoretical standpoint, the interesting question is whether deference to agency interpretation is something that can realistically be expected, not whether deference to agency interpretation is desirable. Deference to the statutory interpretation of administrative agencies may well be in far greater danger than the spotted owl.

Notes

(1) 467 U.S. 837 (1984). (2) Compare, NLRB v. Hearst Publications, 322 U.S. 111 (1944) (Court defers to board interpretation of the term "employees" in National Labor Relations Act) with NLRB v. Packard Motor Car Co., 330 U.S. 485 (1947) (meaning of "employee" in National Labor Relations Act is a "naked question of law" to be determined by the Court). For other pre-Chevron cases in the deference line, see generally Bonanno Linen Serv. v. NLRB, 454 U.S. 464 (1982); Ford Motor Co. v. NLRB, 441 U.S. 488 (1979); SEC v. Chenery Corp., 332 U.S. 194 (1947); Gray v. Powell, 314 U.S. 402 (1941). For other cases in the independent judicial-interpretation line, see, eg., NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974); Davies Warehouse Co. v. Bowles, 321 U.S. 144 (1944). (3) See, eg., Judge Friendly's opinion in Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35 (2d Cir. 1976). (4) KENNETH CULP DAVIES & RICHARD J. PIERCE JR., ADMINISTRATIVE LAW TREATISE 108 (3d ed. 1994). (5) 467 U.S. 837, 842-43. (6) See, eg., Pension Benefit Guarantee Corp. v. LTV, 496 U.S. 633 (1990). (7) See, eg., Dole v. United Steelmakers of America, 494 U.S. 26 (1990). (8) 480 U.S. 421 (1987). (9) Id. at 446. (10) Id. at 447. (11) 467 U.S. 837, 843 n.9. (12) 480 U.S. 421, 454 (Scalia, J., dissenting). (13) 115 S. Ct. 2407 (1995). (14) 16 U.S.C. [sections] 1532(19) (1990) (emphasis added). (15) 115 S. Ct. 2407, 2416. (16) Id. at 2421 (Scalia, J., dissenting). (17) Id. (18) See DAVIES & PIERCE JR., supra note 4, at 112-19. (19) John F. Belcaster, The D. C. Circuit's Use of the Chevron Test: Constructing a Positive Theory of Judicial Obedience and Disobedience, 44 ADMIN. L. REV. 745, 754 (1992) (out of 213 cases, the agency's interpretation was affirmed 141 times and reversed 72 times).