Chevron as a voting rule

Ernesto Camacho Restrepo
Derecho Administrativo


Artículo
|Improving Deference: Chevron as a Voting Rule |[pic|
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|Jacob E. Gersen and AdrianVermeule, Wednesday, 24 January 2007 [View as PDF]  |
|Of central importance to administrative law and theory is the question whether, and when, courts will defer to agency interpretations of law. |
|In Chevron v. Natural Resources Defense Council, the Supreme Court replaced earlier answers to that question with a new framework:courts should|
|defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, |
|however, the Chevron framework has come under increasing strain. Doctrinally, there are many ambiguities and uncertainties about the nature of |
|the inquiry at the first and second steps of Chevron, including questions about theadmissibility and weight of various legal sources. In |
|practice, recent evidence suggests that Chevron’s effect varies markedly with the ideological and political preferences of the judges who apply |
|it. |
|These problems arise, in part, from a dubiouspremise of the Chevron enterprise, one that should be rethought. The dubious premise is that the |
|legal system should adopt a doctrinal solution—the Chevron rule-for what is, after all, an institutional problem: the allocation of interpretive|
|authority between agencies and courts when congressional instructions are silent or ambiguous. In our article in this Journal we explore an ||alternative, which is to cast Chevron as a voting rule, thereby institutionalizing deference to administrative agencies. Imagine a voting rule |
|stating that when a litigant challenges agency action as inconsistent with an organic statute, the agency would prevail unless the judges, |
|asking simply what the best interpretation of the statute is, vote to overturn the agency by supermajorityvote—say, by a 6-3 vote on the |
|Supreme Court, or by a 3-0 vote on an appellate panel. |
|Judges, lawyers, and commentators often develop doctrinal solutions to institutional problems. However, legal doctrine is rarely the only type |
|of solution to an institutional problem, and it is not alwaysthe best solution. An alternative is to change the rules that govern the |
|composition, powers, or voting rules of relevant institutions. We call these “hard” solutions, in contrast to “soft” or doctrinal solutions. The|
|relative costs and benefits of soft solutions, on the one hand, and hard solutions, on the other, vary across contexts and over time. Our point |
|is not that hardsolutions are always superior, for they are not. What we do suggest is that hard solutions prove superior in many domains, yet |
|are frequently overlooked. |
|Although the respective costs and benefits of hard and soft rules will vary with context, certain regularities maketentative generalizations |
|possible. Consider, abstractly, the problem of partial deference, by which we mean the recurring situation in which it would be good or right |
|for institution A to defer to institution B on the resolution of legal question Q, but only if institution B’s decision is not clearly wrong or |
|unreasonable. A problem that arises in many situations of partial deference...