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"Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc." asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation-whether intentionalism, purposivism, or textualism-and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as if Congress intended that text to have a relatively specific meaning. The presumption of a specific meaning does not match the reality of how Congress designs regulatory statutes. Congress is more likely to eschew specificity in favor of agency delegation under certain circumstances-for example, if an issue is complex and if legislators can monitor subsequent agency interpretations through administrative procedures. Although Chevron recognizes such "delegating" factors, it fails to sufficiently credit them. Even "United States v. Mead Corp.", which makes delegation the key question, falls short. This Article imagines what interpretive theory would look like for regulatory statutes if it actually incorporated realistic assumptions about legislative behavior. The theory would engage factors such as the complexity of the issue and the existence of administrative procedures as indications of interpretive delegation more satisfactorily than existing law does. In the process, it would produce a better role for courts in overseeing the delegation of authority to agencies.

The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In this Essay, I argue that critics have misjudged the fiction. First, there is direct evidence that Congress attends to the delegation of interpretive authority and is likely to view the delegation of regulatory authority as sufficient to convey a delegation of interpretive authority. Second, there is indirect evidence that the Court's framework tracks how Congress decides to delegate. The Court is employing a fiction in the sense that it is not looking for actual legislative intent but is imputing legislative intent. But that fiction is no different in kind than the one that the Court employs in other contexts. By viewing the fiction of congressional delegation as worse than it is, critics have had license to disregard it in evaluating how to allocate interpretive authority between courts and agencies. My argument would bring that issue back to how Congress designs statutes.

In "Chevron, U.S.A. v. Natural Resources Defense Council, Inc.", the Supreme Court famously held that judicial deference to agency interpretations of ambiguous statutes is appropriate largely because the executive branch is politically accountable for those policy choices. In recent cases, the Court has not displayed unwavering commitment to this decision or its principle of political accountability. This Article explores "Gonzales v. Oregon" as well as an earlier case, "FDA v. Brown & Williamson Tobacco Corp.", in which the administrations possessed strong claims of accountability yet the Court did not defer to the agency determinations. In both, the Court justified its refusal of deference by contending that the questions were too extraordinary for Congress implicitly to have delegated. This Article argues that these cases might be better understood to reflect a judgment not about whether Congress had delegated interpretive authority, but about how each administration had exercised its authority. Both administrations, while accountable in a general sense, acted undemocratically when viewed in the particular context. They used broad delegations in ways insensitive to likely congressional or popular interests on controversial issues, and inconsistent with the obligations of the executive branch within government. The Court determined that the conditions for judicial deference were not met. Thus, these cases reflect an approach that, while inconsistent with conventional notions of political accountability, is nevertheless principled and defensible. The Article shows that this approach is reflected in other cases, although not many. The infrequency does not diminish the importance of the message that the cases send to the executive branch. But it does illuminate important limits: Ordinarily, administrations do not raise alarms, and political accountability is sufficient for judicial deference. An examination of the cases demonstrates that the Court is aware of the danger that it might invalidate agency ...

Legal scholars view administrative law as alternately shaped by concerns for procedural integrity and issues of political control, and therefore as consisting of largely conflicting rules. But they have overlooked that the Court may be elaborating administrative law, and more particularly, administrative procedures, for a political purpose - to ensure that agency action roughly tracks legislative preferences. Thus, rather than vacillating between procedures and politics, the Court may be striving to negotiate two sorts of politics: congressional control, exercised through administrative procedures, and presidential control, vindicated by presumptive judicial deference. Positive political theorists, meanwhile, have appreciated that administrative procedures can assist Congress in monitoring agencies. But they have not applied their theory to actual administrative law, and their assumptions about judicial behavior cannot predict such law. This Article combines the insights of legal scholars and positive political theorists to offer a better descriptive account and normative defense of the seminal administrative law cases. It shows that the Court has recognized a political use for administrative procedures, as positive political theorists might expect. It contends, however, that to truly understand administrative law, we must see the Court in a way more familiar to legal academics, as sincerely interested in producing acceptable rules for agency decisionmaking. The Court has claimed a role in mediating the strategic needs of both political branches for control of agency action. In so doing, the Court has matched the practical way that agencies operate with a normative theory about how they should operate in the democratic structure.

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court's reluctance to allow judicial review of agency inaction reflects the popular view that agency decision-making should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decision-making reject the Court's treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles of the administrative state are dedicated not only to promoting political accountability, but also to preventing administrative arbitrariness-and reserve a role for judicial review toward that end. This Article shows that agency inaction raises a concern for administrative arbitrariness because it is susceptible to the same narrow influences that derail agency action from public purposes. Agency inaction that reflects such influences, though often rational from a political standpoint, nonetheless is arbitrary and objectionable from a democratic perspective. This Article therefore suggests that courts eschew any special prohibitions on judicial review of agency inaction, and instead subject agency inaction to the same principles of judicial review that apply to agency action. It proposes changes to the two doctrines that most frequently block judicial review of agency inaction: nonreviewability and standing. Furthermore, it recommends that courts carve any exceptions to judicial review for agency inaction from established constitutional law principles. It argues that nonreviewability should be understood as an analogue to political question doctrine, precluding courts from policing conduct committed to the unfettered discretion of administrative officials. Similarly, it argues that standing should be understood as an analogue to ...

This Article argues that efforts to square the administrative state with the constitutional structure have become too fixated on the concern for political accountability. As a result, those efforts have overlooked an important obstacle to agency legitimacy: the concern for administrative arbitrariness. Such thinking is evident in the prevailing model of the administrative state, which seeks to legitimate agencies by placing their policy decisions firmly under the control of the one elected official responsive to the entire nation-the President. This Article contends that the "presidential control" model cannot legitimate agencies because the model rests on a mistaken assumption about the sufficiency of political accountability for that purpose. The assumption resonates with the premise, familiar in constitutional theory, that majoritarianism is the hallmark of legitimate government. This premise, brought to the fore by Alexander Bickel, now is questioned among constitutional theorists. Moreover, majoritarianism is not enough to legitimate administrative decisionmaking under our constitutional structure for the reason that it does not reliably address the concern for arbitrariness. This Article argues for a more direct focus on the concern for arbitrariness-ana pproach that has at its core a concern for good government, not simply "accountable" government in the post-Bickel, majoritarian sense of that word. The Article demonstrates how a more direct approach suggests new possibilities for resolving the time-honored problem of agency legitimacy and new ways of understanding the perennial puzzles of administrative lawar.

Ask those who carefully follow the Supreme Court, and they will tell you that--for good or bad, depending on their perspective--the current Supreme Court has reduced to near rubble the metaphorical wall separating church and state.

The Supreme Court's recent reversal of the D.C. Circuit's decision in "Whitman v. American Trucking Ass'ns" brings to center stage the critical question for disciplining delegation of lawmaking authority to administrative agencies: Should courts use constitutional law or administrative law for requiring agencies to supply the standards that guide and limit their lawmaking discretion when Congress does not? Professor Bressman argues that "Ashwander v. TVA" provides a resolution. In Ashwander, Justice Brandeis directed courts to refrain from deciding constitutional questions unless absolutely necessary to decide a particular case. Following Justice Brandeis' now famous teaching, courts should refrain from using constitutional law to require agency-generated standards because administrative law provides an adequate non-constitutional law ground for this purpose. Deferring to administrative law avoids the need to revive the constitutional non-delegation doctrine or impugn the constitutionality of a statutory delegation. Moreover, administrative law offers a theoretical foundation and a practical framework for imposing an administrative standards requirement. Professor Bressman also argues that the Ashwander principle begins to explain and justify the Supreme Court's opinion in American Trucking. The Supreme Court in American Trucking rebuked the D.C. Circuit for applying constitutional doctrine to require an agency to supply limiting standards where Congress had not. It also denied the D.C. Circuit the power to decide that agencies rather than courts (indeed, the Court) could supply narrowing constructions of statutory delegations when constitutionally required. This reading brings American Trucking in line with other recent cases in which the Court has corrected other governmental actors for exceeding the limits of their assigned roles. But, Professor Bressman contends, American Trucking did not foreclose the possibility of requiring administrative standards under administrative law. The Court did not pretend that ...

How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive accommodation presents any problem at all. Because permissive accommodation is not mandatory, it does not raise the knotty issue of determining when legislatures must grant exemptions requests. Legislatures always may deny requests for permissive accommodation, but when they do grant such requests, they further a fundamental constitutional commitment to religious liberty by minimizing governmental interference with religious exercise. Why not simply encourage legislatures to grant requests for permissive accommodation to the greatest extent possible? The problem occurs when legislatures protect religious liberty in a manner that compromises another fundamental constitutional commitment-equality. If left to their own devices, legislatures might well grant exemptions for religious claimants while denying comparable treatment to nonreligious claimants. They might even grant an exemption to one religious sect while denying comparable treatment to other sects. In either case, the legislatures implicate themselves in the unconstitutional establishment of religion.

The new delegation doctrine might seem perplexing to both sides of the current delegation debate. Either it is too intrusive on administrative prerogatives or it is not nearly intrusive enough. The new delegation doctrine is difficult to comprehend only because it evinces a different focus. While the debate concentrates primarily on the legitimacy of lawmaking by administrative agencies, the new doctrine speaks more to the goal of promoting the legitimacy of law made by administrative agencies. It might even be fair to say that, in this regard, the new doctrine moves beyond the academic debate. Moreover, the new doctrine neither abandons democracy nor interferes with it in an arbitrary fashion. It attempts to reinforce a certain conception of democracy in precisely those cases that suggest a classic democracy problem. And it does so at the administrative level, preserving the significant advantages of agency policymaking. Thus, it offers a mechanism that mediates between the extremes of the delegation debate and that fits comfortably within the administrative state. The new delegation doctrine also recognizes and remedies the inherent limitation of interpretive norms as an alternative tool for constraining broad delegations.