The Rise of Delegation

We now live in a world of delegation.  It is often said that most of the rules that are enforced at the federal level have not been enacted by Congress, but by administrative agencies.  It was not always that way.  The binding rules in the United States used to be enacted or recognized by other entities.  The statutory rules would be enacted by Congress and they would be interpreted by the courts.  Common law rules would be recognized by the federal courts.  And, of course, more areas were addressed solely at the state level.  It is true that agencies sometimes exercised delegated authority, but it was a much more limited affair.

This transformation to a world of delegation – to the Administrative State – has been quite astounding.  It is worthwhile pausing to consider some of the ways it happened.  There are two principal types of delegation that have occasioned this transformation: delegation of policymaking and delegation of legal interpretation.

The delegation of policymaking involves a congressional decision to authorize an agency to exercise policymaking discretion.  For example, many statutes that authorize agencies to take actions that are in the public interest are best interpreted as delegating such discretion to the agency.  The responsibility for this delegation largely lies with Congress, which decided to pass the statute.  The lead in this type of delegation has been taken by the Democrats – during the New Deal, the Great Society, and the Obama Administration – but the Republicans have certainly employed this tactic as well.  Additional responsibility for this type of delegation must lie with the Supreme Court, which after striking down a few delegations in 1935, has not struck down any, with the one possible exception of the Line Item Veto Act – the one delegation that would reduce the size of government.  

The second type of delegation – the delegation of legal interpretation – has occurred differently.  This type of delegation – which allows the agencies deference as to their interpretation of statutes or legislative regulations – occurred mainly through the judicial doctrines of Chevron deference and Seminole Rock deference.  Unlike the delegation of discretion, which clearly came from Congress, this type of delegation is principally the responsibility of the courts.  And here the Republicans have had at least equal, if not more, responsibility than the Democrats.

Congressional statutes are best read as not generally conferring deference on the agencies.  The Administrative Procedure Act (APA) does not appear to confer deference, but to require the courts to decide all legal questions. While specific statutes could explicitly or perhaps even implicitly confer deference on the agencies, this is nothing like the Chevron regime, which presumes that all ambiguities and gaps in the statute are delegated to the agency.  In my view, the great majority of cases where the courts currently grant Chevron deference would not involve any discretion under an approach that honestly asked whether Congress had actually conveyed such deference.  While there was some deference found by courts in the first generation or two under the APA, it was generally limited to smaller issues (such as mixed questions of law and fact rather than to pure questions of law).  It was the Republican judges in the middle 1980s that were the most important cause of the adoption of Chevron.

Chevron and Seminole Rock (which extends deference to agency interpretation of regulations), were disasters.  The Congress had already delegated policymaking discretion, but at least that discretion was limited by an independent decision on the law from the courts.  After Chevron and Seminole Rock, the agency’s delegated authority was greatly expanded, since the agency could now enjoy both types of delegation.

The moral of the story here is that dramatic changes like delegation are not simply the result of the actions of one government entity.  Such changes have to gain the approval (or at least acquiescence) of multiple parts of the government and often of both parties.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Devin Watkins says

    Well said, I 100% agree with everything you wrote. The APA specifically says “the reviewing court shall decide all relevant questions of law, [and] interpret constitutional and statutory provisions . . .” Chevron itself originally only applied to vague provisions (although it used the word ambiguous it used the legal meaning that meant vague), and as such applied to questions of fact and mixed questions of law and fact not pure questions of law. As Court stated 3 years after Chevron (with 4 justices who were in the majority of Chevron), in I.N.S. v. Cardoza-Fonseca:

    The question whether Congress intended the two standards to be identical is a pure question of statutory construction for the courts to decide. . . The narrow legal question whether the two standards are the same is, of course, quite different from the question of interpretation that arises in each case in which the agency is required to apply either or both standards to a particular set of facts. There is obviously some ambiguity in a term like “well-founded fear” which can only be given concrete meaning through a process of case-by-case adjudication. In that process of filling “‘any gap left, implicitly or explicitly, by Congress,’” the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program.

    Scalia wrote a scathing dissent pushing for the modern intepration of Chevron which includes pure questions of law. In fact interestingly enough no majority on the Court has explicitly overturned this. The closest the Court has come was in N.L.R.B. v. United Food & Commercial Workers Union, Local 23, AFL-CIO in which a four justice concurrence repudiated it (Scalia got O’Conner to join him when she was in the majority in Cardoza-Fonseca). But a four justice concurrence cannot overturn a majority on the Court. Regardless the DC Circuit has taken the United Food concurrence as if it were the majority of the Court. Given how much against this doctrine of deference on pure question of law Justice Thomas is, and even Justice Bryer as of 2009 (in Negusie v. Holder, 555 U.S. 511, 538 (2009)), I wonder if the Court will (now that Scalia is no longer on the Court) reverse this as applied to pure questions of law (mixed questions of law and fact have a lot more support for the ability to delegate them).

  2. gabe says

    Great essay and comments by Devin as well.

    One could argue that once delegation was authorized, it was inevitable that the Courts would eventually *confer* deference upon the Agencies, if only as a practical matter. One cannot envision the court exercising control over every action / quasi-judicial determination made by the Agencies.
    But yep, blame should be fairly well apportioned amongst the Branches AND the political Parties.

    I have a question for both of you as a result of Devin’s last sentence, re: Absence of Scalia.

    I have earlier read that Kagan also leaned toward some change in “deference” when a member of the Federal court?

    1) Is this correct?
    2) If so, do you think that she will be an influential component of attempts to, at least, refine current understandings of deference owed Executive Agencies.

    3) Of course, given the preferences of Madame Hillary, her appointees may very well undo any Thomas counter to current doctrine.

    • Devin Watkins says

      So Justice Kagan called Chevron a “fictionalized statement of legislative desire.” But said that greater deference should be given not based on “how” the agency made a given outcome (was it notice and comment, vs guidance letter), but instead based on who made the decision (a low level bureaucrat wouldn’t be given as much deference as the head of the agency). Here is how the issue was handled in a footnote of an article she wrote:

      Section 706 of the APA provides that “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law [and] interpret
      constitutional and statutory provisions.” 5 USC 706. Some scholars have suggested that
      this provision in fact requires independent judicial review of interpretive judgments, thus
      precluding Chevron deference. See, e.g., Cass R. Sunstein, Law and Administration After
      Chevron, 90 Colum L Rev 2071, 2080-81, 2086 (1990); Farina, 89 Colum L Rev at 472-
      73 (cited in note 54). The issue never has troubled the Court unduly, nor do we think it
      should. As Sunstein himself concedes, the interpretive decisions that the court shall render
      under Section 706 may incorporate some measure of judicial deference; the courts, in other
      words, can decide the relevant legal question by holding that the agency is entitled to
      deference in some sphere and then policing its limits. See 90 Colum L Rev at 2081 n 46.
      The APA thus may well leave the level of deference to the courts, presumably to be decided
      according to common law methods, in the event that an organic statute says nothing about
      the matter. See John F. Manning, Constitutional Structure and Judicial Deference to Agency
      Interpretations of Agency Rules, 96 Colum L Rev 612, 635 (1996) (noting that the APA’s
      provisions on judicial review contain “faint expressions of legislative purpose” and “came
      from a tradition that used flexible common law methods to review administrative action”)

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