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The Constitutional Foundations of Chenery |
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Kevin M. Stack [View as PDF]
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116 Yale L.J. 952 (2007)
The Supreme
Court regularly upholds federal legislation on grounds other than those
stated by Congress. Likewise, an appellate court may affirm a lower
court judgment even if the lower court’s opinion expressed the wrong
reasons for it. Not so in the case of judicial review of administrative
agencies. The established rule, formulated in SEC v. Chenery Corp.,
is that a reviewing court may uphold an agency’s action only on the
grounds upon which the agency relied when it acted. This Article argues
that something more than distrust of agency lawyers is at work in Chenery. By making the validity of agency action depend on the validity of the agency’s justification, Chenery’s
settled rule enforces an aspect of the nondelegation doctrine that has
been obscured by more recent decisions that understand nondelegation as
involving only a demand for legislative standards, or “intelligible
principles.” The neglected arm of the nondelegation doctrine, which Chenery
enforces, holds that a delegation is constitutionally valid only if it
requires the agency exercising the delegated authority to state the
grounds for its invocation of power under the statute. Chenery’s
enforcement of this norm polices the political accountability of agency
action by ensuring that accountable decision-makers, not merely agency
lawyers, have embraced the grounds for the agency’s actions, and it
promotes the regularity and rationality of agency decision-making by
enforcing a practice of reason-giving. This nondelegation account of Chenery explains why agencies must engage in reasoned decision-making to obtain deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Chenery insists that, to receive Chevron deference, accountable agency actors must explain the bases for their decisions that bind with the force of law. By grounding Chenery
in the enforcement of the nondelegation doctrine, this account also
suggests that the President’s own exercise of statutory power is not
immune from Chenery’s demands.
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