abstract. Judicial deference to executive statutory interpretation—a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council—is one of the central principles in modern American public law. Despite its significance, however, the doctrine’s origins and development are poorly understood. The Court in Chevron claimed that the roots of judicial deference stem from statutory interpretation cases dating to the early nineteenth century. Others, by contrast, have sought to locate Chevron’s doctrinal roots in judicial review’s origins in the writ of mandamus. According to the standard narrative, courts in the pre-Chevron era followed a multifactor and ad hoc approach to issues of judicial deference; there was little theory that explained the body of cases; and the holdings and reasoning of the cases were often contradictory and difficult to rationalize.

This Article challenges the standard account. It argues that the Supreme Court in Chevron, and scholarly commentators since, have misidentified nineteenth-century statutory interpretation cases applying canons of construction “respecting” contemporaneous and customary interpretation as cases deferring to executive interpretation as such. It further argues that, although the standard for obtaining a writ of mandamus was central to judicial review in the early Republic, statutory developments in the latter half of the nineteenth century (significantly, the enactment of general federal-question jurisdiction in 1875) ultimately mooted the relevance of that standard. Finally, it discusses the intellectual challenges to the traditional interpretive framework beginning in the early twentieth century; the Supreme Court’s embrace of these intellectual challenges in the early 1940s; and Congress’s attempt in the Administrative Procedure Act’s (APA) standard-of-review provision to reject the Court’s interpretive experimentation and corresponding deviation from the traditional canons. The Article thus seeks to establish—contrary to the suggestion in Chevron and recent cases—that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic. And it contends that the governing statute of administrative law—the APA—was intended to codify the traditional interpretive approach and to reject the experimentation of the 1940s Court. Taken together, these conclusions cast doubt on much of the received wisdom on the doctrinal basis for the rule announced in Chevron.

author. Associate Professor, University of Virginia School of Law. For helpful comments and encouragement, I owe thanks to Divya Bamzai, Kent Barnett, Will Baude, John Duffy, Dan Ernst, Rob Gasaway, Michael Greve, John Harrison, Bryan Killian, Gary Lawson, Steve Lindsay, Jenn Mascott, Michael McConnell, John McGinnis, Aaron Nielson, Mark Pinkert, Joe Postell, Joshua Revesz, Jeff Rosen, Peter Strauss, Chris Walker, Ryan Walsh, and participants in a workshop at George Mason University’s Center for the Study of the Administrative State. All errors are my own.

Introduction

The doctrine of judicial deference to executive interpretation casts a long shadow over the entire field of American public law. That doctrine—now commonly associated with the Supreme Court’s opinion in Chevron v. Natural Resources Defense Council—provides that a reviewing court must “defer” to an administrative agency’s reasonable interpretation of the organic statute that it administers.1 It does not stretch the imagination to believe that, on every single working day of the year, there exists in the employ of the federal government a judge, an executive officer, or a legislator who expressly invokes or formulates policy premised on Chevron.

From where did the concept of judicial deference to executive interpretation originate? At first blush, the concept may appear inconsistent with Chief Justice Marshall’s assertion, in Marbury v. Madison, that “[i]t is emphatically the province and duty of the judicial department to say what the law is”2—a tension that has prompted some to characterize Chevron as the “counter-Marbury” of the administrative state.3 But Chevron itself claimed provenance in a series of precedents stretching back to the Marshall Court that demonstrated that the Court had “long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.”4 The perspective that Chevron’s origins date to the nineteenth century seems also to be a majority view among commentators, at least judging from the regular (though offhand) statements, even by critics of Chevron, conceding that there is a “long tradition of deference to agency interpretations.”5

A separate doctrinal justification for judicial deference is set forth in Justice Scalia’s dissent in United States v. Mead Corp.,6 and, almost a half century earlier, in Justice Douglas’s majority opinion in Panama Canal Co. v. Grace Line, Inc.7Judicial deference, on this view, can be understood as “in accord with the origins of federal-court judicial review.”8 That is because, to borrow Justice Scalia’s words, “[j]udicial control of federal executive officers was principally exercised through the prerogative writ of mandamus” before the enactment of general federal-question jurisdiction in 1875, and mandamus “generally would not issue unless the executive officer was acting plainly beyond the scope of his authority.”9 Based on this history, statutory ambiguities should be “left to reasonable resolution by the Executive,” as they ordinarily would have been when an Article III tribunal reviewed a writ of mandamus directed against an executive official.10 As Justice Douglas put the point, the “principle at stake” in judicial deference cases “is no different than if mandamus were sought—a remedy long restricted, in the main, to situations where ministerial duties of a nondiscretionary nature are involved.”11

In contrast to these two justifications seeking to situate judicial deference in nineteenth-century historical practice, a diametrically opposed perspective is offered by those who, like Cass Sunstein, believe that Chevron is best “understood as a natural outgrowth of the twentieth-century shift from judicial to agency lawmaking.”12 On this view, as Mark Tushnet explains, early twentieth-century “administrative law unquestioningly accepted” that “courts would have full power to review agencies’ decisions interpreting the law those agencies were administering.”13 That perspective accords with the view, expressed by Ann Woolhandler, that “[t]he de novo model in its various manifestations, which left the final say to the judiciary rather than the executive, was the predominant form of judicial review of executive action in the early Republic.”14 Chevron (or at least, its twentieth-century precursors), on this perspective, is not an outgrowth of, but rather a break from, what came before it.

There is an element of truth to each of these competing perspectives about the development of the doctrine of judicial deference to executive interpretation. But there is an element of imprecision in each as well. If judicial deference to executive interpretation is rooted in eighteenth- and nineteenth-century approaches to interpretive theory, what explains the perspective that de novo, rather than deferential, review was the traditional model of interpretation? By contrast, if judicial deference is a phenomenon of the mid-twentieth century, what explains the holdings of the nineteenth-century cases on which Chevron relied? And where does judicial review’s origins in the writ of mandamus fit within the historical picture? The fact that a wide spectrum of historical interpretation is possible—even at this late date, more than thirty years after the Court’s decision in Chevron—suggests that the roots of the doctrine announced in that opinion remain poorly understood.

Layered on top of these varying interpretations of the case law are varying interpretations of the text of the Administrative Procedure Act (APA), which represented (in part) Congress’s attempt in 1946 to codify and clarify the scope of judicial review of agency legal interpretations. The relevant text of the APA seems simple enough: it provides that a “reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”15 Yet, here too, disagreement over meaning reigns. Some argue that the text of the APA is too simple—deceptively simple. It was intended, in the words of the influential Attorney General’s Manual on the Administrative Procedure Act, to “restat[e] the [then-]present law as to the scope of judicial review”16 and as a “general restatement of the principles of judicial review embodied in many statutes and judicial decisions.”17 The APA, on this view, incorporated the approach of pre-1946 cases expressing principles of judicial deference and, thereby, incorporated a doctrine akin to Chevron.

Courts and commentators tend to agree on at least one issue: prior to Chevron, there was widespread confusion over the proper scope of review.18 That confusion could be seen in the various approaches that courts took in the years immediately preceding Chevron, and it dated back to the very earliest days of the nation.19 The confusion is well expressed in a 1976 opinion by Judge Friendly that announced it was “time to recognize . . . two lines of Supreme Court decisions on th[e] subject” of judicial deference “which are analytically in conflict, with the result that a court of appeals must choose the one it deems more appropriate for the case at hand.”20 In his opinion, Judge Friendly contrasted a series of Supreme Court cases “supporting the view that great deference must be given to the decisions of an administrative agency applying a statute to the facts and that such decisions can be reversed only if without rational basis” with a separate and “impressive body of law sanctioning free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term.”21 Indeed, on one view, Chevron—if it had no other beneficial aspects—at the very least cleared up the intellectual and jurisprudential disarray that had existed for over a century prior to 1984.22

Or did it? In this Article, I argue that commentators have misunderstood the pre-Chevron state of affairs. Although Chevron can claim an analog of sorts in early nineteenth-century cases about interpretive methodology, those cases addressed the “respect” that was due to executive interpretation because of the interpretation’s nature—specifically, its articulation contemporaneous with the enactment of the controlling legal text or its ability to demonstrate a customary practice under that text. In this respect, four critical and hitherto neglected points are necessary to understand the intellectual and jurisprudential development of judicial deference to executive interpretation.

First, the charge of longstanding and uniform analytical disarray is mistaken. Far from being under-theorized, proper interpretive methodology in the seventeenth and eighteenth centuries received ample intellectual and judicial attention. Eighteenth-century England and America were no intellectual wastelands when it came to political theory. It should be unsurprising that they were not wastelands when it came to considering the proper relationship between the judiciary and executive in construing legal texts.

Second, the prevailing interpretive methodology of nineteenth-century American courts was not a form of judicial deference, as it has come to be understood in the post-Chevron era. Under the traditional interpretive approach, American courts “respected” longstanding and contemporaneous executive interpretations of law as part of a practice of deferring to longstanding and contemporaneous interpretation generally. It was the pedigree and contemporaneity of the interpretation, in other words, that prompted “respect”; the fact that the interpretation had been articulated by an actor within the executive branch was relevant, but incidental.

Nor was nineteenth-century mandamus practice based on any interpretive methodology that required judicial deference to the executive qua executive. While the modern reader may hear echoes of Chevron in mandamus—because the mandamus standard precluded judicial intervention when an executive official engaged in an “executive duty” (including statutory interpretation) that required the exercise of judgment and discretion23—the analogy is mistaken. As the Court put it in the foundational case of Decatur v. Paulding, if an issue of statutory construction were to arise outside of the mandamus context—where the standards for obtaining the writ did not apply—“the Court certainly would not be bound to adopt the construction given by the head of a department.”24 Courts, in other words, applied the mandamus standard only because they were confronting a writ of mandamus (or another extraordinary writ). Where there was no writ of mandamus, there would be no comparable interpretive deference.

A window into nineteenth-century interpretive methodology can be found in a neglected passage from Justice Story’s Commentaries on the Constitution. In the course of discussing how best to interpret legal texts, Justice Story explains that “the most unexceptionable source of collateral interpretation is from the practical exposition of the government itself in its various departments upon particular questions discussed and settled upon their own single merits.”25 The modern reader, reviewing this language and finding it familiar, might believe that he has stumbled upon an old and venerable friend—namely, the canon described in Chevron. That gloss on Justice Story’s Commentaries, however, would be mistaken. Justice Story made these remarks in the context of an extended discussion on the proper role of “practical exposition” in construing the federal Constitution. Understanding the import of this passage, its intellectual antecedents, and the reason why Justice Story would have borrowed techniques of statutory construction to construe the Constitution will allow us to understand the respective roles of the executive and the judiciary in nineteenth-century interpretive methodology.

Third, when the modern trend toward generalized judicial deference to executive interpretation began during the fifth decade of the twentieth century, the Court did not rely primarily on the principle that courts “respected” contemporaneous and customary executive constructions, nor on the principle that the mandamus standard required deference to executive action. Instead, the Court invoked longstanding precedents addressing judicial deference to agency factual determinations and analogized questions of law requiring agency expertise to questions of fact. In doing so, the Court drew on preexisting scholarship suggesting that a formal distinction between “law” and “fact” in administrative review was illusory.26 By embracing this legal-realist perspective on the law-fact distinction, and thereby blurring the line between factual determinations and legal questions, the Court incrementally expanded the domain of agency discretion in a manner that ultimately led to the Chevron doctrine.27

Fourth, Congress enacted the APA in 1946 in part to stop this deviation from the traditional interpretive rules and to recapture the interpretive methodology that prevailed before the Court’s experimentation with the law-fact distinction during the 1940s. The APA’s text, drafting history, and early scholarly interpretations all point in this direction: they suggest that Congress sought to cabin the discretion that the Court had recently granted administrative agencies.28 But the APA’s text and drafting history were quickly forgotten. In the time between the APA’s adoption and Chevron, courts relied interchangeably on cases applying the mandamus standard, cases applying the traditional contemporary and customary canons, and cases applying the 1940s approach breaking down the distinction between judicial review of questions of law and questions of fact. The result was, as Judge Friendly observed in Pittston Stevedoring Corp. v. Dellaventura, a bewildering and often contradictory set of rules to govern judicial review of agency statutory interpretation.29 Chevron cleared up this confusion by departing from, rather than seeking out, the meaning of the APA’s text and the traditional interpretive methodology.

The lacuna in the scholarship on the roots and historical development of judicial deference is no academic issue—for the validation of a legal rule, such as the interpretive rule announced in Chevron, is rightly viewed to be its pedigree.30 Judicial deference’s pedigree, moreover, is doubly relevant because Congress specified the proper scope of judicial review of executive legal interpretations when it provided in section 706 of the APA that a “reviewing court shall decide all relevant questions of law” and “interpret constitutional and statutory provisions.”31 The canon of construction that Chevron announced can be justified only if it is an appropriate gloss on Congress’s articulation of the proper standard of review in section 706 of the APA.

Finally, judicial deference’s pedigree is particularly salient today, in the wake of recent opinions addressing the doctrine’s scope. In a recent case, Chief Justice Roberts remarked that “[t]he rise of the modern administrative state has not changed” Marbury’s directive that courts “say what the law is,”32 nor has it altered the Court’s “duty to police the boundary between the Legislature and the Executive,” which is “firmly rooted in our constitutional structure” and is “as critical as [the] duty to respect that [boundary] between the Judiciary and the Executive.”33 And Justice Scalia, in another recent case, called for a rejection of another branch of the doctrine of judicial deference because the “purpose of interpretation is to determine the fair meaning of the rule—to ‘say what the law is.’”34 A consideration of precisely what history tells us about the proper relationship between courts and the executive on matters of statutory interpretation is therefore necessary and timely.

This Article traces the intellectual and jurisprudential origins and development of judicial deference to executive interpretation. Part I addresses recent opinions that have called into question the doctrine of judicial deference from a historical perspective. Part II describes the theory and practice of interpretation that prevailed in American courts throughout the nineteenth century. It also describes two associated doctrines that later proved relevant to the evolution of the doctrine of judicial deference—the standard for extraordinary writs, such as mandamus, and Article III review of agency factual determinations. Part III explains how the interpretive framework unraveled over the course of the twentieth century; how Congress sought in the APA to codify the prevailing interpretative approach; and how the attempted codification was unsuccessful, leading ultimately to the Court’s decision in Chevron.

I. judicial deference at the court and through the lens of history

Over the past three terms, a series of Supreme Court opinions have sought to address the relevance of historical practice to the legality of judicial deference to executive interpretation from a variety of perspectives, some invoking Marbury, other eighteenth-century sources, and the text of the Administrative Procedure Act. But the opinions have yet to grapple with relevant doctrine and the cases cited in Chevron itself. In Section I.A, I address the role that precedent played in the Chevron opinion. Section I.B then demonstrates that the Justices have since failed to engage seriously with that precedent on which Chevron relies, and Section I.C seeks to bring attention to the corresponding gap in the scholarly treatment of Chevron’s origins.

A. The Role of Precedent in the Chevron Opinion

A close review of Chevron shows the central role that preexisting law played in the Court’s holding. Chevron, it may be remembered, announced a now-canonical interpretive methodology for judicial review of an “agency’s construction of the statute which it administers.”35 First, “employing traditional tools of statutory construction,” the reviewing court must determine whether “Congress has directly spoken to the precise question at issue.”36 If it has, “that is the end of the matter” and the court “must give effect to the unambiguously expressed intent of Congress.”37 Second, if “Congress has not directly addressed the precise question at issue” because “the statute is silent or ambiguous,” a reviewing court’s task is to determine “whether the agency’s answer is based on a permissible construction of the statute.”38 As a result, the “court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction.”39

In reaching this conclusion, the Court relied on two rationales. The first was sound policy in the allocation of responsibilities among the branches of government. Article III judges, the Court noted, “have no constituency” and “are not experts in the field” or “part of either political branch.”40 Second, Chevron sought to ground the rule that it announced in precedent.41 The Court asserted that it had “long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.”42 To support that proposition, the Court cited, though it did not analyze, several dozen cases43 dating back to the Court’s 1827 opinion in Edward’s Lessee v. Darby.44

Under the rule announced by these precedents, the Court reasoned, it would be a “basic legal error . . . to adopt a static judicial definition” of a statutory term when “Congress itself had not commanded that definition.”45 Even if the agency’s interpretation “represent[ed] a sharp break with prior interpretations of the Act,” that break did not necessarily mean “that no deference should be accorded the agency’s interpretation of the statute.”46 “An initial agency interpretation,” according to the Court, “is not instantly carved in stone.”47 To the contrary, the Court embraced the claim that the “fact that the agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible.”48 The key point, according to the Court, was that, in a “technical and complex arena,” the agency had “consistently interpreted [the Act] flexibly” rather than “in a sterile textual vacuum” and had properly considered “varying interpretations and the wisdom of its policy on a continuing basis.”49

B. The Current Debate over Judicial Deference

In a number of recent concurrences and dissents, Justices on the Court have highlighted their interest in confronting judicial deference from a historical or separation-of-powers perspective, relying on an array of different sources from Marbury to James Madison to Montesquieu. But none of these opinions has addressed the cases that Chevron itself relied on to justify judicial deference as a matter of precedent.

The first avenue through which Justices have raised these issues is in a critique of Chevron itself. The Chief Justice’s dissent (joined by Justices Kennedy and Alito) in City of Arlington v. FCC,50 for example, attempted to re-evaluate Chevron in light of separation-of-powers first principles. While nominally accepting the Chevron framework,51 the City of Arlington dissent stressed that its “disagreement” with the majority is “fundamental”52 and premised on the notion that the “duty to police the boundary between the Legislature and the Executive” is “firmly rooted in our constitutional structure” and is “as critical as [the] duty to respect that [boundary] between the Judiciary and the Executive.”53 Fixing “the boundaries of delegated authority,” according to the dissent, “is not a task” that courts can “delegate to the agency” because “[w]e do not leave it to the agency to decide when it is in charge.”54 Deference under Chevron is appropriate only if the court decides “whether Congress . . . has in fact delegated to the agency lawmaking power over the ambiguity at issue.”55 Accordingly, a congressional delegation of interpretive authority can support Chevron deference only when the delegation “extend[s] to the specific statutory ambiguity at issue,” because the question Chevron requires a court to ask “is whether the delegation covers the ‘specific provision’ and ‘particular question’ before the court.”56 More recently, the Chief Justice revisited the proper application and scope of judicial deference in his majority opinion in King v. Burwell, which casually dismissed the government’s argument that the Internal Revenue Service should receive deference for its construction of the Affordable Care Act’s tax-credit provisions. As the majority put it, the Court “often” applies Chevron in assessing statutory issues of this nature, but not in “extraordinary cases” of “deep ‘economic and political significance’ . . . central to th[e] statutory scheme.”57 Accordingly, it was the Court’s—not the agency’s—“task to determine the [statute’s] correct reading.”58

The second avenue through which the Justices have questioned judicial deference to the executive is through a critique of Chevron’s sister doctrine—commonly attributed to the Supreme Court’s opinions in Bowles v. Seminole Rock & Sand Co.59 and Auer v. Robbins60—under which courts “defer to an agency’s interpretation of its own regulations.”61 In his partial dissent in Decker v. Northwest Environmental Defense Center, Justice Scalia relied on separation-of-powers first principles to argue that this doctrine should be abandoned and replaced with the rule that courts must give regulations their most “natural” and “fairest” construction, “using the familiar tools of textual interpretation,” notwithstanding the agency’s advocacy of a plausible but “unnatural reading.”62

More recently, in a separate concurrence in Perez v. Mortgage Bankers Ass’n, Justice Scalia observed that the APA “contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations” and that the Court’s “elaborate law of deference to agencies’ interpretations of statutes and regulations” was “[h]eedless of the original design of” section 706.63 Despite this observation, however, Justice Scalia did not call for Chevron’s abandonment because interpretive deference on statutory questions “was in conformity with the long history of judicial review of executive action” under a writ of mandamus.64 Seminole Rock and Auer should be rejected, he argued, because there was no “such history justifying deference to agency interpretations of its own regulations.”65 Justice Thomas likewise questioned the “legitimacy” of Seminole Rock, which (according to him) “effect[ed] a transfer of the judicial power to an executive agency” and “raise[d] constitutional concerns” by “undermin[ing]” the Court’s “obligation to provide a judicial check on the other branches.”66 That was so because, according to Justice Thomas, “the judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.”67 In language that could apply just as easily to Chevron as to Seminole Rock, he claimed that “[w]hen courts refuse to decide what the best interpretation is under the law, they abandon the judicial check.”68

What is notable about these recent opinions, taken together, is not merely the anti-deference position that they advocate, but also their failure to engage with the nineteenth-century cases on which Chevron relied. To be sure, the Justices have cited Chief Justice Marshall’s directive in Marbury that courts must “say what the law is”;69 the text of the Vesting Clauses of Articles I and III;70 James Madison’s and Alexander Hamilton’s statements on the importance of the separation of powers in The Federalist;71 similar general statements by Montesquieu, William Blackstone, and other pre-Founding authors;72 and the text of section 706 of the APA.73 But Chevron’s reliance on early nineteenth-century cases raises the possibility that each of these sources can, at the end of the day, be reconciled with the broad principle of judicial deference that the Court believed that it was rearticulating.

Cases like Edward’s Lessee, on which Chevron itself relied, are completely missing from the recent opinions questioning judicial deference. In other words, though Chevron was premised on a jurisprudential tradition, that tradition plays no part in the current debate. That omission is a serious one, because (assuming Chevron properly understood the cases) their age suggests that separation of powers poses no barrier to judicial deference to executive interpretation. The import of those cases is thus key to assessing the recent judicial critiques of the Chevron opinion.74

C. The Scholarly Treatment of the Precedents Cited in Chevron

Scholars have previously addressed the cases on which Chevron relied, but here too the debate remains incomplete. In an article almost contemporaneous with the Court’s opinion in Chevron, Henry Monaghan relied on the same basic set of precedents to conclude that “[h]istory, if not logic, is . . . squarely against the wide assertion . . . that article III courts can never yield to administrative constructions of law.”75 He contended that “the Marshall court itself gave early sanction to deference principles,” with “judicial expressions of deference increas[ing]” over the course of the nineteenth century and Marbury proving “no barrier to the development.”76

Adopting a slightly different perspective, Thomas Merrill identified a tradition of deference that was “pragmatic and contextual” and based on “an eclectic cluster of considerations,” such as the relative expertise of the agency, the consistency or contemporaneity of the agency’s interpretation, and the depth of the agency’s analysis.77 In a similar vein, Peter Strauss observed that a court interpreting a statute referred to “the meanings attributed to it by prior (administrative) interpreters, their stability, and the possibly superior body of information and more embracive responsibilities that underlay them.”78 Like Strauss and Merrill, the most prominent administrative law scholars in the decades following the APA’s passage, Kenneth Culp Davis and Louis Jaffe, both described the doctrine of judicial deference as turning on a host of factors.79 According to Merrill, however, this pre-Chevron tradition “had no unifying theory for determining when to defer”; had “no explicit rationale linking the various factors together,” which “tended to be invoked unevenly”; and “did not comprise, either individually or collectively, what could be described as a coherent doctrine.”80 “No attempt,” as he puts it, “was made to connect the various factors together or to explain their relevance in terms of a model of executive-judicial relationship.”81

With respect to the argument that Chevron may be justified as consistent with “the origins of federal-court judicial review” in the writ of mandamus, scholars have had little to say.82 Since Chevron, there has been no in-depth scholarly or jurisprudential attention to this issue, despite acknowledgement that it is one of the few attempts “to reconcile Chevron with the text of the APA.”83

The failure to engage with Chevron’s precedential origins and the nature of mandamus review has left an important gap in the administrative law literature. In the remainder of this Article, my goal is not only to fill this gap, but also to provide a richer and deeper understanding of the doctrinal underpinnings of judicial deference and an explanation of how the Chevron Court misinterpreted the precedents on which it relied.

II. the theory and practice of interpretation from the early american republic to the end of the nineteenth century

Interpretive theorists of the seventeenth and eighteenth centuries routinely applied two interpretive canons to eliminate the problem of ambiguity: a reliance on the contemporaneous understanding of a text (what was called the “contemporanea expositio”) and a reliance on the customary understanding of that text (the “interpres consuetudo”). The nineteenth-century cases on which Chevron relied apply these two canons of construction, which form the critical theoretical underpinnings for the case law and the interpretive methodology of the era. In this Part, I explore the interpretive methodology used by nineteenth-century courts and commentators, beginning in Section II.A with a review of the intellectual foundations of the interpretive approach, before turning in Section II.B to an examination of how American courts applied the interpretive methodology in practice. I then turn in Section II.C to two related issues: the articulation of the standard for obtaining a writ of mandamus, and the proper scope for reviewing factual issues previously adjudicated by executive branch officers. These issues illuminate how nineteenth-century courts viewed the proper relationship between the judicial and executive branches. They were also instrumental in the development of doctrines of deference during the twentieth century. Finally, in Section II.D, I offer a “view from 1900” through the lens of nineteenth-century treatises.

A. The Theory of Interpretation: The Contemporanea Expositio and Interpres Consuetudo Canons of Construction

In a recent opinion respecting the denial of certiorari, Justice Scalia remarked that King James I, England’s monarch at the turn of the seventeenth century, “did not have the benefit of Chevron deference.”84 James I governed a nation with an administrative apparatus far different in kind and scope from the American administrative state. But the smaller size and dissimilar ambitions of the seventeenth-century English state did not eliminate the need for English judges to interpret ambiguous legal text. Rather than adopting a Chevron-like framework, however, judges adhered to customary canons of construction in the face of statutory ambiguity. Two of those canons—the contemporanea expositio and interpres consuetudo­—were central to the development of judicial deference.

1. The Problem of Ambiguity

It takes no genius to recognize that legal text can, for a variety of reasons, be difficult to interpret. Not surprisingly, seventeenth- and eighteenth- century legal theorists (some of whom could fairly be described as geniuses) identified the problems that ambiguity, in its various guises, posed for an ordered legal system.85

Writ large, the goal of interpretation was straightforward: understanding the meaning and intention of the text’s “speaker.” In the words of John Selden, a well-known seventeenth-century scholar and parliamentarian, “a mans wryting has” the “sense” that “the Author meant when he write it.”86 Or as John Locke put the same point, a man speaks so “that he may be understood” and to “make known his ideas to the hearer.”87 The “signification” of the speaker’s words, therefore, “is limited to his ideas, and they can be signs of nothing else”—lest they end up “hav[ing] no signification at all.”88

That commonsense approach, however, could break down in significant cases. One difficulty was the inherent ambiguity of human language and the constant concern that an author had expressed himself imprecisely—a problem only exacerbated by the fact that legal documents were often created for application to future circumstances not fully anticipated.89 The amount of time between the text’s creation and the text’s application often meant, as Blackstone pointed out, that the precise issue to be adjudicated “probably . . . did not occur to the legislators when they framed the . . . Act.”90 A second difficulty was the change in the conventional usages of language over time—otherwise known as semantic drift. Even where a legal text’s meaning was unambiguously known and established at the time of its adoption, the passage of years could change and obscure the sense of the words used. “Laws operate at a distance of time,” wrote the English cleric and academic Thomas Rutherforth in an influential treatise—a distance that could hinder the search for “true meaning” by interpreters “who live many years, after the laws were made.”91

And a third difficulty arose in the case of legal texts created by more than one party.92 In such cases, the various “authors” may not have intended to express the same idea in creating the text, and asking them for their meaning after the fact could be problematic because their perspectives could become unreliable. At the time when judicial interpretation was generally necessary—after a dispute between parties could not be resolved outside of the courts—a fair-minded interpreter could not simply ask the parties what they meant to say, because each party’s interpretation of the text was likely colored by present interests.93 For that reason, Blackstone argued that “[t]o interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression.”94 Like parties to a contract, legislators could give biased testimony, perhaps as a result of influence by persons interested in and capable of corrupting the bargain struck in the statute’s text.95

2. Solutions to the Problem of Ambiguity

The goal of interpretation was to mitigate these difficulties through the application of neutral rules—the canons of construction—that approximated, in Blackstone’s words, the legislature’s “intentions at the time when the law was made, by signs the most natural and probable.”96 Many of these canons were nothing more than rules of thumb for good English. Others were of a more legal bent and remain familiar to us today, such as the canon that an interpreter should “construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers.”97

Two of those canons are central to the development of judicial deference. The first canon was distilled in the Latin maxim contemporanea expositio est optima et fortissima in lege—or “a contemporaneous exposition is the best and most powerful in law.” The rule had deep-rooted origins. As early as the fifteenth century, Chief Justice Frowyck claimed that, in the absence of legislators’ “declaracion of theire myndes” in statutory text, the “authoritye” of those who “were mooste neerest the statute” would “persuade us.”98

For the generation of the Constitution’s Framers, the canon’s most famous proponent was the eminent Elizabethan-era jurist Edward Coke. “Great regard,” he is believed to have explained,

[O]ught, in construing a statute, to be paid to the construction which the sages of the law, who lived about the time, or soon after it was made, put upon it; because they were best able to judge of the intention of the makers at the time when the law was made.99

Early expositors of legal text were often “best able to judge of the intention” of the text’s drafters, thereby allowing a later interpreter to approximate the drafters’ meaning. For that reason, Coke explained in theMagdalen College Case that “Acts of Parliament . . . are to be construed according to the intent and meaning of the makers of them, the original intent and meaning is to be observed.”100 In particular, “ancient acts and graunts,” like the Magna Carta, “must be construed and taken as the law was holden at that time when they were made.”101Other legal scholars advocated the same general approach.102 Rutherforth, for example, advocated that, to “remov[e] any doubts about the sense” of a law “owing only to our remoteness from its original establishment,” an interpreter should “look[] back into the contemporary practice . . . which the law produced in the first instance” to “see in what sense it was then understood.”103

Jurists applied the contemporanea expositio rule of thumb in a wide variety of cases. In 1591, for example, the King’s Bench observed that “when [an] ancient grant is general, obscure, or ambiguous, it shall not be now interpreted as a charter made at this day, but it shall be construed as the law was taken at the time when such ancient charter was made, and according to the ancient allowance on record.”104

And the canon was not directed at statutes alone: it was viewed as a generalized method of proper interpretation, applicable to all manner of legal instruments. Vattel, for example, argued that, in seeking the meaning of a treaty’s words at the time it “was entered into and its terms drawn up,”the interpreter should consult “deeds of the same period and . . . contemporary writers, by a careful process of comparison.”105

Precisely how to implement the canon was the subject of debate. On the one hand, in what may be one of the early uses in the common-law tradition of some sort of “legislative history” to arrive at the contemporanea expositio, Chief Justice Frowycke wrote in the fifteenth century that “those that were the penners & devisors of statutes [have] bene the grettest lighte for exposicion of statutes.”106 That suggested that the interpretation expressed by the authors of the statute—albeit intentions not expressed in the statute itself—would be somehow privileged above the interpretation of others. A number of cases, such as Chief Justice Mansfield’s opinion in Atcheson v. Everitt, “looked into the debates of th[e] days” during which a law was enacted.107 On the other hand, the English majority view appeared to preclude the use of legislative debates to aid statutory construction. As Christopher Hatton, Lord Chancellor under Elizabeth I, observed, parliamentarians had no special authority over the interpretation of legal text because “their Authority is returned to the Electors so clearly” even “if they were altogether assembled again for interpretation by a voluntary meeting.”108 More to the point, other judges asserted that “[t]he sense and meaning of an Act of Parliament must be collected from what it says when passed into a law; and not from the history of changes it underwent in the house where it took its rise.”109 As a result, “[p]arliamentary doubts, debates, or conferences, ought to have no weight in directing judicial determinations.”110

But whether the interpreter was permitted to use sources akin to what we now call legislative history—or only other sources indicating the author’s intent, such as contemporaneous dictionaries or scholarly works—the ultimate point was the same: the faithful interpreter of an ambiguous statute resorted to contemporaneous sources to determine the contemporanea expositio.111

The second rule of thumb was also distilled into a Latin phrase—optimus interpres legum consuetudo, or “usage is the best interpreter of laws.”112 The interpres consuetudo canon, as I will call it, had equally deep-rooted origins. The Roman jurist Julius Paulus Prudentissimus—the praetorian prefect to the Emperor Alexander Severus and the most excerpted authority in Justinian’s Digest—had expressed the point as early as the third century.113 Like the contemporanea expositio canon, the interpres consuetudo canon was routinely applied by courts.114 Coke applied it in Lord Cromwel’s Case.115 John Vaughan, the Chief Justice of the Court of Common Pleas and a friend of John Selden’s, remarked in Sheppard v. Gosnold that “[w]here the penning of a statute is dubious, long usage is a just medium to expound it by”—because “the meaning of things spoken or written must be, as it hath constantly been receiv’d to be by common acceptation.”116

Nobody harbored the illusion that reference to contemporary or customary practices allowed the interpreter to capture perfectly the meaning of the speaker. But as the British judge and politician James Mansfield observed, “It is of greater consequence that the law should be as uniform as possible, than that the equitable claims of an individual should be attended to.”117 There was, in other words, utility in not disturbing the expectations of parties who had come to rely on the customary interpretation. If the “uniformity” produced by the customary interpretation did not reflect the legislature’s wishes—perhaps because “the subtle and nice Wits of learned Lawyers” had obscured parliamentary intent—the legislators, “who best knew their own Sense and Meaning,” could enact explanatory statutes “to direct and guide the Judges.”118

3. American Perspectives

American lawyers at the time of the Constitution’s adoption were familiar with these theoretical debates and the resulting interpretive framework.119 For example, in the widely circulated The Federalist, James Madison and Alexander Hamilton analyzed how these interpretive principles would be applied to construe a newly adopted Federal Constitution and concluded that constitutional interpretation should mimic ordinary statutory interpretation.120 Thus, Hamilton equated the task that Article III judges would have in interpreting the Constitution with their ordinary role in applying tools of statutory construction to congressional enactments. Without suggesting a bright demarcation between deferential statutory review and de novo constitutional review, he observed that the judiciary would “ascertain [the Constitution’s] meaning, as well as the meaning of any particular act proceeding from the legislative body.”121

Second, in articulating that generalized interpretive approach, Madison acknowledged the pervasive problem of legal ambiguity, and the specific criticisms of the anti-Federalists that the language of the Constitution was ambiguous,122 in terms that would have been familiar to legal theorists of the seventeenth and eighteenth centuries. Madison observed that “no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.”123 Due to inherent deficiencies in language, “new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal.”124

Third, Hamilton considered, but rejected, the possibility that the political branches would fill in the ambiguities in the Constitution’s text. He addressed the likelihood that the “[l]egislative body [would] themselves [be] the constitutional judges of their own powers,” making the “construction they put upon them . . . conclusive upon the other departments.”125 He rejected that view as not being “the natural presumption, where it is not to be collected from any particular provisions in the Constitution.”126 In light of the Constitution’s separation of powers, Hamilton noted, it would be “far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority,” with “[t]he interpretation of the laws [as] the proper and peculiar province of the courts.”127

Fourth, both Madison and Hamilton adopted the proposed solutions to the problem of legal ambiguity advocated by seventeenth- and eighteenth-century legal theorists. They stressed, in other words, the role of custom and contemporaneity in construing those parts of the Constitution’s text that may otherwise be susceptible to a range of permissible interpretations. In the words of Hamilton, customary practice that developed over time would “liquidate the meaning” of the Federal Constitution.128 Or as Madison put it, the meaning of constitutional provisions would be “liquidated and ascertained by a series of particular discussions and adjudications.”129

Commentators of the era echoed Madison’s and Hamilton’s views in polemics, scholarly works, and legislative debates. Law professor and jurist Theophilus Parsons, for example, declared that the people would have “no permanent security of . . . person and property” if “the executive and judicial powers be united,” because “[t]he executive power would interpret the laws and bend them to his will; and, as he is the judge, he may leap over them by artful constructions, and gratify, with impunity, the most rapacious passions.”130 In a more sober vein, James Wilson declared that “[t]he first and governing maxim in the interpretation of a statute is, to discover the meaning of those, who made it.”131 Similarly, writing under the pseudonym Brutus, the well-known anti-Federalist Robert Yates assumed that the Supreme Court would “fix[], by a course of decisions” the “meaning and construction of the constitution.”132 During the First Congress, various congressmen repeatedly referenced the contemporaneous and customary interpretation given to constitutional provisions in advancing their positions in debates over the Bill of Rights, the removal of federal officers, and the First National Bank.133 As Madison put it during the consideration of the First National Bank, the participants of these debates shared the assumption that “[c]ontemporary and concurrent expositions” of the Constitution were “reasonable evidence of the meaning of the parties.”134

B. The Interpretive Theory in Practice

Looking from the vantage point of the Framers and early theorists, one can better understand the nineteenth-century cases on which Chevron relied. In particular, these sources highlight that courts’ repeated assertions that certain executive interpretations of legal text should receive “respect” were in fact applications of the theory that an ambiguous legal text should be given its contemporaneous and customary meaning. The courts’ assertions were, in both constitutional and statutory cases alike, applications of the contemporanea expositio and interpres consuetudo canons, not of judicial deference to the executive as such. A look into early American practice demonstrates courts’ use of the canons in both constitutional and statutory interpretation, and their willingness to invalidate executive action on the basis of the canons.

1. The Generality of the Canons in American Practice

Early courts routinely invoked the two canons to construe the Constitution’s text. In the leading case, Stuart v. Laird (decided the same year as Marbury),135 the Supreme Court addressed the constitutionality of the practice of Supreme Court Justices “riding circuit” without distinct commissions as circuit judges. The Court explained that, because the “objection” to circuit riding was of “recent date,” it was “sufficient to observe, that practice and acquiescence under [the Constitution] for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction.”136 “This practical exposition” was, the Court reasoned, “a contemporary interpretation of the most forcible nature” that was “too strong and obstinate to be shaken or controlled.”137

A number of seminal cases followed this mode of analysis by giving weight to early and longstanding constructions of ambiguous constitutional provisions. In McCulloch v. Maryland, Chief Justice Marshall reasoned that “[a]n exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.”138 In Cohens v. Virginia, Marshall observed that “[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition.”139 And in Field v. Clark, the Court reasoned that “the practical construction of the Constitution, as given by so many acts of Congress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land.”140

Opinions in somewhat more obscure cases tied the formulations of the canons to the justifications given for them by Madison and other interpretive theorists. In The Passenger Cases, Chief Justice Taney’s dissent (echoing Madison) noted that “[i]f in this court we are at liberty to give old words new meanings when we find them in the Constitution, there is no power which may not, by this mode of construction, be conferred on the general government and denied to the States.”141 In Burrow-Giles Lithographic Co. v. Sarony, the Court said that “[t]he construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive.”142 And in Boyd v. United States, the Court expressly tied its interpretive approach to the Latin formulations of the interpretive canons, observing that “long usage, acquiesced in by the courts, goes a long way to prove that there is some plausible ground or reason for [an interpretation] in the law,” because “[i]t is a maxim that, consuetudo est optimus interpres legum; and another maxim that, contemporanea expositio est optima et fortissima in lege.”143

Cases interpreting statutes applied precisely the same canons of construction as constitutional cases. Judges “deferred” to or “respected” executive statutory constructions because they were contemporaneous to enactment or customary, not because they were executive as such. The leading case for many years was Edwards’ Lessee v. Darby,144 which Chevron cited as the earliest example of a case holding that “considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.”145 Edwards’ Lessee addressed a statute enacted by the North Carolina legislature to settle disputes over certain land boundaries. The Court held that it would not disturb the construction of the statute previously given by appointed land commissioners because “[i]n the construction of a doubtful and ambiguous law, the cotemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.”146 The Court observed that the North Carolina statute “was not only thus construed by the commissioners, but that construction seems to have received, very shortly after, the sanction of the legislature” in a later enactment that “must be construed as recognising the validity of, and as ratifying the surveys which had been made by the commissioners.”147

2. The Use of the Canons To Invalidate Executive Action

The clearest sign that Edwards’ Lessee announced a doctrine of deference to contemporaneous and customary interpretations, not a doctrine of deference to executive interpretations, is that the principle in the case was repeatedly invoked to reject the executive branch’s changed construction of a statute and to require that statutory interpretation be consistent and uniform—and, hence, customary or contemporaneous with enactment. In Merritt v. Cameron, for example, the Court reasoned that “a construction of a statute by a department charged with its execution [is not] held conclusive and binding upon the courts of the country, unless such construction has been continuously in force for a long time.”148 The Court’s precedents “go to that extent and no further.”149 Along the same line, in United States v. Healey, writing for the Court, Justice Harlan reasoned that, as a result of the lack of “uniform[ity]” in the “practice of the Department,” the Court was obligated “to determine the true interpretation of the act of 1877, without reference to the practice in the Department.”150 Justice Harlan observed that the outcome may have been otherwise if “the Interior Department had uniformly interpreted the act,” in which case the Court would have “accept[ed] that interpretation as the true one, if, upon examining the statute, we found its meaning to be at all doubtful or obscure.”151 And in United States v. Alabama Great Southern Railroad Co., a unanimous Court relied on the “contemporaneous construction thus given by the executive department of the government, and continued for nine years through six different administrations of that department” in rejecting a “sudden change” in favor of the executive branch’s litigating interpretation.152 The Court previously reasoned in United States v. Hill that the interpretive principle of contemporaneous construction “has been applied, as a wholesome one, for the establishment and enforcement of justice, in many cases in this court, not only between man and man, but between the government and those who deal with it, and put faith in the action of its constituted authorities, judicial, executive, and administrative.”153

The cases, moreover, cited constitutional, statutory, and even contractual precedents applying the canons interchangeably, while nowhere suggesting that the rule varied depending on the legal instrument at issue in the case. For example, in Schell’s Executors v. Fauché, the Court held that a past “practice” that had “grown up throughout the country” made it “too late for us to be called upon to overrule it . . . notwithstanding [a] treasury regulation,” relying on both Stuart v. Laird (which addressed deference to legislative practice under the Constitution) and Edwards’ Lessee (which addressed deference to administrative practice under a statute).154 “In all cases of ambiguity,” the Court claimed, “the contemporaneous construction, not only of the courts but of the departments, and even of the officials whose duty it is to carry the law into effect, is universally held to be controlling.”155

Over a century after the American Revolution, the traditional canons of construction continued to have relevance in the interpretation of ambiguous legal text. As the Court explained in The “City of Panama,” when an act is ambiguous, “the contemporaneous construction of such a statute is entitled to great respect, especially where it appears that the construction has prevailed for a long period, and that a different interpretation would impair vested rights—contemporanea expositio est fortissima in lege.”156

C. Two Related Issues: The Mandamus Standard and Questions of Fact

Before turning from the legal framework of the nineteenth century to that of the twentieth, it is necessary to address two additional aspects of early American public law, both of which played a large role in the development of doctrines of deference. The first—the nature and scope of judicial review in cases brought using a writ of mandamus or other extraordinary writ—has been cited by Justices of the Supreme Court as a precursor to modern doctrines of deference and a possible doctrinal basis for Chevron.157 As explained below, however, the nineteenth-century cases addressing the scope of the mandamus writ support the contrary proposition. Those cases distinguished between, on the one hand, the standard for obtaining the writ and, on the other, the appropriate interpretive methodology that would be applied in cases not brought using the writ. The second—the nature and scope of judicial review of factual determinations by executive branch officials—would prove to be critical in the early intellectual justifications for, and the subsequent development of, the doctrine of judicial deference in the mid-twentieth century.

1. Mandamus Review

The immediately preceding discussion of the nineteenth-century Court’s use of a de novo standard of review for statutory questions (accompanied by application of the contemporanea expositio and interpres consuetudo canons) may suggest that judges were routinely involved in directly reviewing the interpretive decisions of executive branch officials. But judicial review of executive action was for a portion of the nineteenth century often accomplished using a writ of mandamus (or other extraordinary writ), which carried with it a deferential standard of review. That standard of review witnessed a significant shift from the Marshall Court to the Taney Court, then began to lose its salience with the advent of federal-question jurisdiction in 1875. More importantly, the standard was a function of the writ used—and the remedy sought—rather than the interpretive theory that the Court was applying.

Because federal courts lacked general federal-question jurisdiction until 1875, parties arguing that an executive official violated federal law had to find another source of jurisdiction to challenge the executive branch’s interpretation and application of law. In the absence of general federal-question jurisdiction—and where a claim did not “arise under” one of the specific grants of federal-question jurisdiction that Congress enacted during this period158—parties normally had two options: (1) common-law actions in which the interpretation of a statute was an ancillary step in the analysis; and (2) extraordinary writs, such as the writ of mandamus, against the executive branch official charged with enforcing the action.159 The interpretive method applied in cases involving either of these two bases for jurisdiction tells us much about the proper role that courts and executive officers played in construing statutes.160

Some statutory issues were reviewable in the context of tort or contract actions against the responsible executive officer or another party.161 In such cases, as demonstrated above, the Court’s interpretive role was essentially de novo.162 Not all statutory issues, however, could readily be adjudicated in the context of a common-law action.163 Where a common-law action was unavailable, plaintiffs sometimes resorted to seeking a writ of mandamus directed at the responsible executive officer.164 But the writ imposed its own standard for obtaining relief. As Chief Justice Marshall explained in Marbury, mandamus would issue only if the claimant could show that he had a vested right and that the executive official had violated a nondiscretionary, ministerial legal duty.165 Other comparable writs were subject to similar limitations.166

The application of that abstract standard to concrete cases ebbed and flowed significantly over the course of the early nineteenth century beginning with Marbury and the interventionist impulses of the Marshall Court. While Marbury recognized that “there may be such cases” in “which[] the injured individual has no remedy” (because the statutory duty called for the exercise of discretion),167 the opinion tended to disregard the mandamus standard in order to elevate the right-remedy connection. As Chief Justice Marshall put it, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”168 Statutory remedies, in other words, were to be implied when there were statutory wrongs, consistent with the Blackstonian notion that “where there is a legal right, there is also a legal remedy”—language quoted with approval in Marbury itself.169 Elaborating on a similar theme some thirty years later, the Chief Justice claimed that “[i]t would excite some surprise if, in a government of laws and of principle,” a person would be left with “no remedy, no appeal to the laws of his country, if he should believe the claim to be unjust.”170 “[T]his anomaly does not exist,” Chief Justice Marshall claimed, because “this imputation cannot be cast on the legislature of the United States.”171

Chief Justice Marshall’s conception of rights and remedies had a sound intellectual pedigree—as his citation of Blackstone suggests. What it lacked, however, was a sound basis in positive law. In the wake of the Jeffersonian victory in 1800, Congress repealed the general grant of federal-question jurisdiction, leaving mandamus review as one of the limited avenues by which private parties could compel executive officials to comply with statutory duties.172 That repeal necessarily meant that not every executive violation of a statute would have a remedy. Contrary to the Chief Justice’s assertion, the “anomaly” (as he saw it) did exist—unless, that is, the mandamus standard was interpreted to be the functional equivalent of de novo review.

The high-water mark for Chief Justice Marshall’s robust vision of mandamus review occurred in Kendall v. United States ex rel. Stokes,173 a case argued and decided three years after his death.174 Kendall reaffirmed the ministerial/executive distinction drawn in Marbury. Granting mandamus where the executive officer acted in a ministerial capacity, the Court concluded in Kendall, would not “interfere[] . . . with the rights or duties of the executive” or “involve[] any conflict of powers between the executive and judicial departments of the government.”175 That was because the mandamus did not “direct or control the [executive officer] in the discharge of any official duty, partaking in any respect of an executive character,” but rather “enforce[d] the performance of a mere ministerial act.”176

After Kendall, however, the interventionist tide receded. Only two years later, in Decatur v. Paulding,177 Chief Justice Taney (who was, of course, Chief Justice Marshall’s replacement) authored an opinion for the Court’s majority denying a writ of mandamus. In Decatur, the Court considered the cumulative effect of two pension provisions enacted on the same day in 1837: a general statute conferring on the widow of a naval officer killed in service a pension at half the pay to which the officer would have been entitled, and a specific resolution granting a pension to the widow of Stephen Decatur, a naval hero. The question was whether Decatur’s widow could recover two pensions. The Secretary of Navy, on the Attorney General’s advice, said she could not recover twice, and Decatur sought mandamus relief.178

Chief Justice Taney concluded that mandamus was inappropriate because the Secretary’s interpretation of the two statutory provisions was an “executive duty” requiring the exercise of judgment and discretion, not a mere “ministerial act.”179 That particular holding—applying the mandamus standard to the facts of the case—may have been unexceptional, but Chief Justice Taney’s reasoning was broad. He observed that executive officials are “continually required to exercise judgment and discretion,” including “in expounding the laws and resolutions of Congress.”180 Such interpretive decisions, according to the Chief Justice, were “[i]n general . . . not mere ministerial duties.”181 Interpretation, from this perspective, generally involved discretion not subject to mandamus.

Chief Justice Taney’s opinion made clear, however, that the standard for mandamus applied in Decatur was distinct from the appropriate methodology for interpreting statutes in non-mandamus cases: “If a suit should come before this Court, which involved the construction of any of these laws,” the Chief Justice reasoned, “the Court certainly would not be bound to adopt the construction given by the head of a department.”182 To the contrary, in such cases, the Justices would be bound to determine whether the executive official’s “decision” was “wrong” and “of course, so pronounce their judgment.”183 That explained why, in common-law cases, the Court gave de novo review to legal questions: a judgment “upon the construction of a law” in a common-law suit would occur “in a case in which [the Court] ha[d] jurisdiction, and in which it is their duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them.”184 Article III judges could not “by mandamus, act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties.”185

Decatur’s underlying reasoning, in other words, rested on the standard for mandamus actions: the case did not purport to turn on appropriate interpretive methodology. The Court’s holding in the case made that point crystal clear. The Court held it lacked “jurisdiction over the acts of the Secretary,” while at the same time “forbear[ing] to express any opinion upon the construction of the resolution in question.”186

Chief Justice Taney’s reasoning in Decatur effectively closed any avenue for mandamus relief against executive officials for four decades. The Court repeatedly denied mandamus relief against executive branch officials on the ground that the officials were performing discretionary, rather than ministerial, duties.187 The next time that the Court approved the issuance of a writ of mandamus to a federal executive officer was in 1880.188

But even while denying the writ, the Court’s cases distinguished between the jurisdictional standard for mandamus and the proper method for interpreting statutes. The Court’s 1888 decision in United States ex rel. Dunlap v. Black,189 to take one example, echoed Chief Justice Taney’s distinction in Decatur. While noting that courts could “not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law,” the Court simultaneously made clear that “[w]hether, if the law were properly before us for consideration, we should be of the same opinion [as the executive officer], or of a different opinion, is of no consequence in the decision of this case.”190 The Court’s earlier decision in the non-mandamus case of Johnson v. Towsley made the same point.191 There, the Court explained that, while it had “frequently and firmly refused to interfere with [executive officers] in the discharge of their duties, either by mandamus or injunction,” it had “constantly asserted the right of the proper courts to inquire” into legal questions concerning private land disputes “according to the established rules of equity and the acts of Congress concerning the public lands,” even where executive branch officials had previously expressed a contrary view of the legal question.192 “[T]he relations thus established between the courts and the land department,” the Court explained, “are not only founded on a just view of the duties and powers of each, but are essential to the ends of justice and to a sound administration of the law.”193

By the time many of these cases were decided, however, the relevance of the scope of the mandamus standard had begun to fade for reasons that Chief Justice Taney could not have foreseen when he wrote Decatur in 1840. In 1875, Congress enacted a statute containing a general federal-question jurisdiction provision. In relevant part, the provision conferred on circuit courts (subject to an amount-in-controversy requirement) jurisdiction over “all suits of a civil nature at common law or in equity . . . arising under the . . . laws of the United States.”194 During the years that followed, the Court inferred the authority to enjoin unlawful executive-branch action from the general grant of “equity” jurisdiction, a process that eliminated (in those cases) the need for plaintiffs to pigeonhole their federal claims into a common-law action or to pursue an extraordinary writ.195

The modern observer reviewing the 1875 Act might wonder why the enactment of federal-question jurisdiction by itself would have been interpreted to create causes of action for statutory violations.196 In John Duffy’s words, “[g]iven the structure of the law then, the 1875 grant of jurisdiction is best interpreted as an authorization for federal equity courts to . . . continue applying the preexisting federal equity law (developed prior to 1875 under other federal jurisdictions).”197 Earlier specific “arising-under” statutes had been interpreted to create equitable causes of action, most notably in the areas of patent and copyright law, but also for claims relating to the revenue and postal acts.198 In addition, drawing on preexisting notions of equity and chancery, some courts had articulated a background norm in which remedies followed the violation of statutory rights.199 As a result, the 1875 grant of jurisdiction ultimately put an end to the necessity of relying on mandamus jurisdiction, and made “equity” and “chancery” the touchstones for review of executive branch action,200 although pockets of mandamus review would continue to exist well into the twentieth century.201

The canonical precedent of this era is the 1902 case of American School of Magnetic Healing v. McAnnulty.202 Pursuant to a statute allowing him to block “fraudulent” schemes executed through the U.S. mails, the Postmaster General determined that the American School of Magnetic Healing’s creed that the “the mind of the human race is largely responsible for its ills” (including physical illnesses) was “fraudulent” and prohibited the School from using the mails.203 Although no statute specifically created a cause of action allowing the School to enjoin the erroneous withholding of “fraudulent” mail, the Court held that the School could sue a local postmaster to stop him from implementing the Postmaster General’s order.204 Justice Peckham’s opinion for the Court reasoned that “in case an official violates the law to the injury of an individual the courts generally have jurisdiction to grant relief.”205 Congress had not entrusted “the administration of these statutes wholly to the discretion of” the executive branch such that the Postmaster General’s “determination is conclusive upon all questions arising under those statutes.”206 To the contrary: courts “must have power in a proper proceeding to grant relief,” lest “the individual [be] left to the absolutely uncontrolled and arbitrary action of a public and administrative officer, whose action is unauthorized by any law and is in violation of the rights of the individual.”207 As in the days of Chief Justice Marshall, remedies were generally assumed to accompany rights.

More to the point, in language that is often ignored, Justice Peckham analogized the case to land disputes adjudicated in common-law actions and reasoned that, although the Land Department is “administrative in its character,” the Court had repeatedly “held that the decisions of the officers of the department upon questions of law do not conclude the courts, and they have power to grant relief to an individual aggrieved by an erroneous decision of a legal question by department officers.”208 The same logic applied here: the Postmaster General’s “right to exclude letters, or to refuse to permit their delivery to persons addressed, must depend upon some law of Congress, and if no such law exists, then he cannot exclude or refuse to deliver them.”209 Assuming that “the evidence before the Postmaster General, in any view of the facts, failed to show a violation of any Federal law, the determination of that official that such violation existed [was] . . . a pure mistake of law on his part.”210 And the Postmaster General’s determination, “being a legal error[,] does not bind the courts.”211 The ministerial-discretionary boundary went unmentioned. In important ways and crucial cases, the 1875 creation of federal-question jurisdiction had (seemingly) rendered the mandamus standard a relic of the past.212

The critical point of the foregoing analysis is that because federal courts lacked general federal-question jurisdiction before 1875, many statutory questions could be resolved only in the context of a mandamus action brought against an executive official. In mandamus proceedings, courts applied the mandamus standard. Following Decatur, the mandamus standard afforded great leeway to executive discretion in interpreting legal text—akin, in some respects, to the zone of interpretive discretion under the modern Chevron doctrine. But application of the mandamus standard was a consequence solely of the form of relief requested, not the consequence of the interpretive theory used. Therefore, a change in positive law on the cause of action would necessitate the abandonment of the mandamus standard. The Court’s use of de novo review in non-mandamus cases made that clear, as did Chief Justice Taney’s opinion in Decatur itself. As the Chief Justice explained, “[T]he Court certainly would not be bound to adopt the construction given by the head of a department” in non-mandamus cases over which the federal courts had jurisdiction, but rather would have the “duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them.”213 Thus, when the general federal-question-jurisdiction statute in 1875 gradually eliminated the need to rely on mandamus jurisdiction to challenge executive action, the mandamus standard and Decatur line of cases became less relevant. As then-Judge (and later President and Chief Justice) Taft put the point in 1898:

In Decatur v. Paulding, it was expressly stated by the court that while, as between the United States and the pensioner, the secretary of navy was the final tribunal for the construction of the statute, yet, if the question were to arise between two litigants in such a way that the court would have jurisdiction over the controversy, the court would not feel bound to follow the construction of the secretary.214

2. The Distinction Between Law and Fact

Whereas mandamus required a deferential standard of review as a matter of jurisdictional boundaries and executive discretion, a second doctrine incorporated a form of deference as a matter of interpretive theory. Specifically, courts distinguished between questions of “law,” which were subject to generally de novo review, and questions of “fact,” which were reviewed deferentially. The doctrine originated from the notion, expressed in the famous case of Murray’s Lessee v. Hoboken Land & Improvement Co., that “there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.”215 Using the authority granted by this doctrine, Congress created administrative bodies that “adjudicated” various factual issues in a manner that bound other parties. A notable example of such an agency was the Land Department, which disbursed various public lands to claimants. These disbursements often triggered common-law property disputes between rival claimants, particularly when the issued land patents were unclear or premised on erroneous understandings of the law or facts. When the Court heard these cases, it did not defer to the Land Department’s interpretations of law, but instead reviewed those questions de novo, applying the contemporary and customary canons of construction. As for factual issues previously resolved by the Department, the Court sometimes treated certain of them as “conclusive” absent an indication that the proceeding was tainted by fraud.216 Over time, the Court refined this standard to include review to ensure that the agency’s decision was supported by “substantial evidence” in the record.217

The standard of judicial review, therefore, turned on whether a particular issue was characterized as one of “law” or one of “fact.” As one might expect, the distinction between law and fact in this context mirrored the law-fact line traditionally drawn in the law of evidence. And as one might expect, just as in the context of the law of evidence, the distinction between “law” and “fact” could pose line-drawing problems. In an influential treatise on the law of evidence, James Bradley Thayer observed that the application of a legal rule to facts had been incorrectly characterized by others as a “mixed question of law and fact,” whereas the jury “always . . . must reason, and must ‘judge the facts.’”218 According to Thayer, there was no bright-line rule separating “law” from “fact” because the difference between cases involving the application of a legal term—such as “reasonableness”—to unique facts “is simply one of more or less.”219 “The reasons for leaving questions as to the meaning and construction of [contract] writing to the judges,” Thayer reasoned, is not “that these are questions of law, for, mainly, they are not,” but rather “ground[s] of policy.”220 The same problem could arise in administrative law. In Marquez v. Frisbie, for example, the Court reasoned that “where there is a mixed question of law and fact, and the court cannot so separate it as to see clearly where the mistake of law is, the decision of the tribunal to which the law has confided the matter is conclusive.”221

The prevailing approach in Land Department cases by the turn of the twentieth century was encapsulated in the Court’s opinion in Johnson v. Towsley.222 In that case, the Court interpreted a statute providing that the decision of the Commissioner “shall be final, unless appeal therefrom be taken to the Secretary of the Interior”223 as establishing only that a decision would be final within the Executive Branch.224 Congress, in the Court’s view, had no “intention to give to the final decision of the Department of the Interior . . . any more conclusive effect than what belonged to it without its aid.”225 The Court “fully conceded that when [executive] officers decide controverted questions of fact, in the absence of fraud, or impositions, or mistake, their decision on those questions is final, except as they may be reversed on appeal in that department,” but claimed that when, “in the application of the facts as found by them they, by misconstruction of the law,” affected the property rights of private parties, the courts had “power to give . . . relief.”226 In language reminiscent of Marbury, the Court claimed that “it is of the very essence of judicial authority to inquire whether this has been done in violation of law, and, if it has, to give appropriate remedy.”227

D. The View from 1900

At the turn of the twentieth century, a reader of the available treatises would have concluded executive interpretations of statutes were relevant to judicial determinations only insofar as they embodied understandings made roughly contemporaneously with the statute’s enactment and stably maintained and practiced since that time.

With respect to constitutional interpretation, the rule was expressed by Justice Story in his Commentaries on the Constitution: “The most unexceptionable source of collateral interpretation is from the practical exposition of the government itself in its various departments upon particular questions discussed, and settled upon their own single merits.”228 Thus, in the words of a more contemporary (from the vantage point of 1900) treatise writer, G.A. Endlich, “[t]he greatest deference is shown by the courts to the interpretation put upon the constitution by the Legislature in the enactment of laws and other practical application of constitutional provisions to the legislative business, when that interpretation has had the silent acquiescence of the people, including the legal profession and the judiciary, and especially when injurious result would follow the disturbing of it.”229

Justice Story also found a role for contemporary construction of the Constitution, which “is properly resorted to, to illustrate and confirm the text, to explain a doubtful phrase, or to expound an obscure clause.”230 Thomas Cooley expressed the same point: “Great deference has been paid in all cases to the action of the executive department, where its officers have been called upon, under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed they have carefully and conscientiously weighed all considerations, and endeavored to keep within the letter and the spirit of the constitution.”231

With respect to statutory interpretation, Theodore Sedgwick observed that “[i]n seeking aid to construe an obscure or doubtful statute, considerable weight is attached to the opinions in regard to it entertained, by persons learned in the law, at the time of its passage.”232 “Of a similar value,” Sedgwick stated, “in regard to the construction of statutes is usage, or the construction which custom or practice has put on them.”233 Likewise, Endlich emphasized that “usage,” including “acts done under” a statute, “may determine the meaning of the language, at all events when the meaning is not free from ambiguity.”234

These passages addressing constitutional and statutory interpretation sound similar, and use the same terminology, for a simple reason: they express the same interpretive methodology, which was used in constitutional and statutory cases alike. There was no stark distinction drawn between de novo constitutional and deferential statutory interpretation. An ambiguous constitutional provision would be given the meaning that early Congresses had given it in practice.235 And courts “respected” agency interpretations for the same reasons James Madison had believed that a series of “adjudications” in the political branches would “liquidate[]” the meaning of constitutional provisions.236 As J.G. Sutherland explained, “[t]he uniform legislative interpretation of doubtful constitutional provisions, running through many years, and a similar construction of statutes, has great weight.”237 The treatises thus echoed what the cases held—the executive branch’s construction of an ambiguous statute would be “respected” where that construction reflected an interpretation that was described as either contemporary with the statute’s enactment, or longstanding or customary, or both.

From the vantage point of the legal community in 1900, there was thus no general rule of statutory construction requiring “deference” to executive interpretation qua executive interpretation. But the landscape would change fundamentally during the course of the twentieth century, when the interpretive methodology for statutes and other legal texts began to diverge dramatically. And, as the passage of time obscured the intellectual roots of the Court’s nineteenth-century precedents privileging the executive’s customary and contemporary interpretations of statutory text, those cases would be reimagined and recycled as precedents privileging the interpretation advanced by executive actors.

III. the steps to chevron

The narrative now turns to the intellectual and jurisprudential steps during the twentieth century that led to the forgetting, and ultimately the unravelling, of the traditional interpretive framework. In Section III.A, I canvass the developments from approximately 1900 through the New Deal Court, when judicial cracks in the glass began to emerge and, more importantly, scholarly critiques of the prevailing interpretive methodology began to take hold. In Section III.B, I address the new jurisprudence of deference that emerged in the early 1940s in the wake of the appointment of new Justices sympathetic to the critiques of judicial review of questions of law. I also explain that, after a backlash against the New Deal, Congress enacted the APA in 1946 to codify the traditional interpretive approach and repudiate the increased deference courts gave to agencies in the 1940s. In Section III.C, I discuss the proliferation of interpretive tests in the years after the APA’s enactment and the bewildering state of the law prior to the Court’s opinion in Chevron. Finally, in Section III.D, I return to and reassess the Court’s opinion in Chevron in light of the Article’s historical analysis.

A. The Traditional Canons of Construction from 1900 Through the New Deal Court

In this Section, I discuss challenges to the prevailing interpretive methodology—most academic, though some judicial—that emerged in the early twentieth century. I explain, however, that courts during this era, by and large, adhered to traditional interpretive techniques—a fact that critics of those techniques acknowledged. Those who advocated for greater judicial deference to executive interpretation during this era understood that they were seeking a departure from prevailing doctrine.

1. A Crack in the Glass

Each of the doctrines that has been discussed thus far played a role in the now-obscure, but once-important 1904 case of Bates & Guild Co. v. Payne.238 In Bates, the Court considered whether the Postmaster General improperly refused to recognize a monthly musical publication, Masters in Music, as a periodical and hence entitle it to second-class mail rates.239 The Postmaster General had determined that because each issue of the periodical was “complete in itself” (each treated the works of a single master musician) and “had no connection with other numbers save in the circumstance that they all treated of masters in music,” the mailings “were in fact sheet music disguised as a periodical, and should be classified as third[-]class mail matter.”240 The government conceded that its position in the case conflicted “with the construction placed upon the statute by the Department for more than sixteen years continuously prior to the present ruling of the Department.”241

In his opinion for the Court, Justice Brown acknowledged that the statutory question at issue “may be one of doubt” and that it was “largely one of law.”242 He nevertheless concluded that “there is some discretion left in the Postmaster General . . . and that the exercise of such discretion ought not to be interfered with unless the court be clearly of opinion that it was wrong.”243 Thus, “even upon mixed questions of law and fact, or of law alone, [an agency’s] action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, although they may have the power, and will occasionally exercise the right of so doing.”244 That was particularly so because “the Postmaster General may have been, to a certain extent, guided by extraneous information obtained by him, so that the question involved would not be found merely a question of law, but a mixed question of law and fact.”245

The Court analogized this curiously speculative holding to two lines of precedents: (1) those “treat[ing] the findings of the Land Department upon questions of fact as conclusive” (notwithstanding the Court’s description of the case as “largely one of law”) and (2) those, like Decatur, in which the Court had held, in applying the mandamus standard, that the executive official’s action “will not be reviewed by the courts, unless he has exceeded his authority or this court should be of opinion that his action was clearly wrong” (notwithstanding the fact that the case did not involve an extraordinary writ).246 The Court distinguished McAnnulty by claiming that the Court’s opinion in that case “intimated that something must be left to the discretion of the Postmaster General.”247 In a dissenting opinion, Justice Harlan (joined by Chief Justice Fuller) noted that the government’s then-current position conflicted with its longstanding one. He contended that the Court’s opinion had “overthrown” the “settled” principle that “the established practice of an Executive Department charged with the execution of a statute will be respected and followed—especially if it has been long continued—unless such practice rests upon a construction of the statute which is clearly and obviously wrong.”248

Precisely what motivated the Court to retreat to a deferential standard in Bates after reviewing the Postmaster General’s decision de novo in McAnnulty is hard to untangle.249 One reasonable speculation is that the Court was still adjusting to the shift in its authority prompted by the creation of general federal-question jurisdiction. Having applied the mandamus standard for so many years, it may have been natural for the Justices to view narrow legal questions through a deferential lens. Justice Brown’s articulation of a “floodgates” issue were the Court to review the agency de novo reveals a hint of this concern: “The consequence of a different rule,” according to the Court, “would be that the court might be flooded by appeals of this kind to review the decision of the Postmaster General in every individual instance.”250 Another reasonable speculation is that the Court found the line between “law” and “fact” in this area to be difficult to draw—hence, Justice Brown’s imprecise descriptions of the issue before the Court as “largely one of law” and a “mixed question of law and fact.”251

Whatever the Court’s reasons for the rule announced in Bates, two additional points are notable. First, Justice Harlan argued in dissent that the Court’s opinion violated the contemporary and customary canons of construction.252 But the Court did not respond to Justice Harlan’s argument. It did not dispute Justice Harlan’s characterization of the precedents, nor did it rely on those cases to justify the rule of judicial deference that it adopted. Second, at least immediately, the rule that Bates announced swung in a relatively narrow arc. As the Court said in Silberschein v. United States, Bates allowed judicial review when the agency’s decision was “wholly dependent upon a question of law.”253

Perhaps because of its lack of immediate impact, Bates has been neglected in modern scholarship. But it was later an influential opinion among those who sought to justify a reduced role for judges in reviewing legal questions. When Jaffe wrote his magisterial summary of administrative law in 1965, for example, he responded to the contention that the Supreme Court’s deference jurisprudence in the 1940s was “an abdication of the customary power and responsibility of the judiciary” by claiming that the doctrine of judicial deference “is as traditional as it is sound”—citing, as his supporting authority, Justice Brown’s opinion in Bates.254 “As long ago as 1904,” Jaffe wrote, “Mr. Justice Brown with complete frankness stated [in Bates] the function of a reviewing court in the terms” of late-twentieth century judicial deference.255

2. Persistence of the Traditional Approach

Notwithstanding the expansion in the size, scope, and responsibility of the federal government, courts in the first few decades of the twentieth century generally hewed to the traditional interpretive formulations. The Court viewed its role as requiring de novo review of questions of law and deferential review of questions of fact,256 with mandamus a diminishing (but continuing) avenue for obtaining relief from agency action.257 The canonical statement of the de novostandard in this era came from a concurring opinion—Justice Brandeis’s concurrence in St. Joseph Stock Yards Co. v. United States.258 Brandeis argued that “[t]he supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied; and whether the proceeding in which facts were adjudicated was conducted regularly.”259 The “inexorable safeguard” of the Due Process Clause, he contended, required that there “be opportunity for a court to determine whether the applicable rules of law . . . were observed” and that an administrative order “may be set aside for any error of law, substantive or procedural.”260

For a generation of scholars, Justice Brandeis’s concurrence set forth the “classic statement” on the scope of judicial review over questions of law.261 There was, however, something ahistorical about Justice Brandeis’s perspective on the “supremacy of law.” For law to be supreme, Justice Brandeis reasoned, an Article III court must pass upon all questions of law and process. Yet he did not acknowledge that, through much of the nineteenth century, the absence of general federal-question jurisdiction necessitated, in many cases, resorting to an extraordinary writ like mandamus, under which an Article III court would not resolve questions of law de novo. A better (or at least, more historically grounded) description of the concept of “supremacy of law” in the American tradition would have acknowledged that Congress has the authority to select the cause of action—deferential mandamus or de novo federal-question review—by which Article III courts would review questions of law. Where Congress provided solely for mandamus jurisdiction, deferential review was consistent with the “supremacy of law.” Where Congress created federal-question jurisdiction, however, the application of independent judgment was consistent with traditional rules of interpretation and, hence, appropriate.

An example of the continued vitality of the canons of construction can be found in a 1932 opinion by Chief Justice Hughes, Burnet v. Chicago Portrait Co.262 In Burnet, Chief Justice Hughes alluded to the “familiar principle . . . that great weight is attached to the construction consistently given to a statute by the executive department charged with its administration.”263 But he rejected application of judicial deference based on a “qualification of that principle” that, he argued, was “as well established as the principle itself”: “The Court is not bound by an administrative construction, and if that construction is not uniform and consistent, it will be taken into account only to the extent that it is supported by valid reasons.”264 Deference was due, in other words, because of an interpretation’s consistency and uniformity, which would in most instances render the agency construction customary or contemporaneous with a statutory enactment. Non-uniform interpretations, by contrast, would be persuasive “only to the extent” they are “supported by valid reasons.”265

Burnet is an obscure decision today, and it has been all but ignored by modern cases and commentators, with one important exception: in Chevron itself, the Court cited Burnet, but neglected to explain or to engage in any way with the “qualification” identified in Chief Justice Hughes’ opinion.266

3. Intellectual Challenges to the Traditional Interpretive Method

In the 1927 book Administrative Justice and the Supremacy of Law in the United States, John Dickinson, at the time a thirty-three-year-old lecturer at Harvard, pointed out that, as a descriptive matter, the scope of judicial review over administrative decision making “focus[ed] ultimately upon the distinction which the courts draw between ‘questions of law’ and ‘questions of fact.’”267 Dickinson recognized that, under prevailing case law, courts “review[ed] for error[s] of law, but not findings of fact, at least where, on the evidence, the findings are within the bounds of reason.”268 “The statutes and cases,” he noted, “are full of this distinction between ‘law’ and ‘fact,’ which is taken for granted, and has formed the basis of decision in so many instances that it becomes important to see what there is in it.”269

Dickinson’s answer was that there was not much to it. Because “any factual state or relation which the courts . . . regard as sufficiently important to be made decisive for all subsequent cases of similar character becomes thereby a matter of law,” it was impossible “to establish a clear line between so-called ‘questions of law’ and ‘questions of fact.’”270 Standards inevitably “bridged [the gap] between the special subsidiary facts . . . and the ultimate [legal] conclusion.”271 Any formal distinction between “law” and “fact” was illusory, because the legal bridge was tantamount to fact finding. As Dickinson put it:

In truth, the distinction between “questions of law” and “questions of fact” really gives little help in determining how far the courts will review; and for the good reason that there is no fixed distinction. They are not two mutually exclusive kinds of questions, based upon a difference of subject-matter. Matters of law grow downward into roots of fact, and matters of fact reach upward, without a break, into matters of law. The knife of policy alone effects an artificial cleavage at the point where the court chooses to draw the line between public interest and private right. It would seem that when the courts are unwilling to review, they are tempted to explain by the easy device of calling the question one of “fact”; and when otherwise disposed, they say that it is a question of “law.”272

Dickinson’s analytical move, in the context of the law of judicial review, echoed Thayer’s similar move in the law of evidence three decades earlier—an intellectual debt that Dickinson acknowledged by repeatedly citing Thayer on this point and describing Thayer’s treatise as “contain[ing] the most profound analysis that I know of the relation between ‘matters of fact’ and ‘matters of law.’”273 It also echoed the Court’s 1904 decision in Bates, which, Dickinson observed, held that “on a ‘mixed question of law and fact’ the finding of an administrative body ought not to be disturbed.”274

Dickinson’s central thesis had the good fortune of being incredibly timely and proved to be hugely influential.275 In the years following publication of the book in 1927, the expansion of the American administrative state during the New Deal brought the executive branch and the Justices of the Supreme Court increasingly into conflict on questions of both constitutional and statutory interpretation. Some critics (and even supporters) of the administrative state sought to articulate a manner in which agency discretion could be cabined. Ernst Freund, a professor at the University of Chicago Law School, believed that administrative action worked best when “procedural guaranties and other inherent checks” were established that would “in course of time, if not immediately, substitute principle for mere discretion” and would “evolve principle out of constantly recurrent action.”276 More dramatically, Roscoe Pound, as the lead author of a Special Committee on Administrative Law for the American Bar Association, criticized an emerging “administrative absolutism” that was repugnant to the idea of traditional law in the United States.277

But the dominant approach within the academy—and the Roosevelt executive branch—embraced administrative discretion.278 Dickinson criticized Freund for viewing administrative discretion as “of necessity inherently bad, and [assuming] that all questions can be justly decided by the yard-stick of fixed rules.”279 More administrative discretion, however, required less judicial review. In the words of Walter Gellhorn, a law professor at Columbia, “the burning question was whether and how much a court could review (and, in reviewing, revise) administrative judgments,” given that judges “were sometimes less than supermen and were therefore themselves capable of erring” and that judges could not “reach more than a tiny segment of the administrative output.”280

In this intellectual climate, whatever Dickinson’s precise intent in describing “law” and “fact” as “not two mutually exclusive kinds of questions,”281 many readers understood his point broadly. Drawing the line between “facts” and “law” for purposes of judicial review, on this view, was not a matter of mere formal categorization, but rather a policy call dependent on the generality of the legal principle that the court or agency was articulating. That meant certain questions traditionally deemed “legal” could be re-conceptualized as “factual” where the principle being articulated was of insufficient abstraction to justify the involvement of generalist courts in the functioning of expert agencies.

In the Storrs Lecture delivered in 1938 at Yale Law School and published as The Administrative Process, James Landis set forth the standard account of New Deal progressives on the topic of judicial review of administrative action.282 “[T]he administrative process,” he claimed, “springs from the inadequacy of a simple tripartite form of government to deal with modern problems,” with the changes wrought by the modern administrative state being “conducive to flexibility—a prime quality of good administration.”283 The quality of “expertness” that administrative agencies possessed, Landis argued, could arise “only from that continuity of interest, that ability and desire to devote fifty-two weeks a year, year after year, to a particular problem.”284

Landis accepted that, under the prevailing interpretive approach, “[t]he scope of judicial review” over questions of fact and questions of law “is wholly different.”285 In this regard, he noted that he “use[d] the[] terms ‘fact’ and ‘law’ knowing how tenuous the distinction between them is” and described Dickinson as an authority who “reject[ed] the distinction completely.”286 With respect to questions of “fact,” the issue was relatively straightforward: review was minimal under the precedents, and should be minimal because “the expertness of the administrative, if guarded by adequate procedures, can be trusted to determine these issues as capably as judges.”287

But as to questions of law, Landis seemed to part ways with the prevailing approach. In a revealing statement, Landis observed that “[t]he interesting problem as to the future of judicial review over administrative action is the extent to which judges will withdraw, not from reviewing findings of fact, but conclusions upon law . . . due to the belief that” legal issues (like factual ones) “are best handled by experts.”288 Landis contended that “the same considerations of expertness” that prompted deference on factual issues “have validity in the field of law.”289 Indeed, the commonplace “desire to have courts determine questions of law is related to a belief in their possession of expertness with regard to such questions.”290 Questions of law, however, should be “decided by those best equipped for the task” due to their expertise, which would in certain specialized circumstances be administrative agencies rather than courts.291 The message from The Administrative Process was clear: judicial deference to executive interpretation was not the law, circa 1938, but some form of the doctrine should be in the future.

B. The Death (and Temporary Revival) of the Traditional Canons from 1940 to the Administrative Procedure Act

Following the appointment of a set of new Justices, the Supreme Court in the early 1940s steadily expanded the zone of interpretive discretion given to administrative agencies, effectively abandoning the traditional interpretive methodology.292 In charting this new course, the Court borrowed much from Dickinson’s (and Thayer’s) legal realist approach to the law-fact distinction. As Jaffe later explained, “[t]he device of characterizing a question as one of fact or as ‘mixed’ permit[ted] a court to pretend that it must affirm the administrative action if it is ‘supported by evidence’ or is ‘reasonable.’”293 But then, in the wake of a backlash against the New Deal and the perception of excesses by administrative agencies, Congress enacted the Administrative Procedure Act in 1946. Read against the history of the APA’s adoption, section 706 is best interpreted as an attempt to revive the traditional methodology and to instruct courts to review legal questions using independent judgment and the canons of construction.

1. The New Jurisprudence

The opinion in Gray v. Powell heralded a new era and set forth an approach to judicial review that illustrated the proclivities of the new members of the Court. In Gray, the Court held that it would not question the Department of Interior’s construction of the word “producer” under the Bituminous Coal Act of 1937.294 The Court reasoned that Congress had “delegate[d] th[e] function” of interpreting the statutory term “to those whose experience in a particular field gave promise of a better informed, more equitable” judgment, and that “this delegation will be respected and the administrative conclusion left untouched.”295 The Court brushed aside the fact that there was “no dispute as to the evidentiary facts” because “[i]t is not the province of a court to absorb the administrative functions to such an extent that the executive or legislative agencies become mere fact finding bodies deprived of the advantages of prompt and definite action.”296 “To determine upon which side of the median line the particular instance falls,” the Court reasoned, “calls for the expert, experienced judgment of those familiar with the industry.”297 In a dissenting opinion, Justice Roberts argued that in the absence of a “single disputed fact,” the agency’s “error was a misconstruction of the Act . . . and that error, under all relevant authorities, is subject to court review.”298 He accused the majority of “obviously fail[ing] in performing its duty,” of “abdicat[ing] its function as a court of review,” and of “complete[ly] revers[ing] . . . the normal and usual method of construing a statute.”299

A few years later, in 1944, the Court elaborated on this mixed-question-of-law-and-fact approach. In NLRB v. Hearst Publications, Inc., the Court concluded that “where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited.”300 The Court rejected the argument that it could “import wholesale the traditional common-law conceptions” of the statutory term, lest the statute become “encumbered by the same sort of technical legal refinement as has characterized” the judicial definition.301 Instead, the Court held that the agency’s “[e]veryday experience in the administration of the statute gives it familiarity” with how best to define the statutory term and meant that the agency construction “is to be accepted if it has ‘warrant in the record’ and a reasonable basis in law.”302

A third case, also from 1944, seemed to articulate a slightly different, more forthrightly multifactor and contextual approach to judicial deference. In Skidmore v. Swift & Co., Justice Jackson authored a unanimous opinion for the Court asserting that a particular agency’s legal interpretations, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”303 The “weight” given the agency’s legal interpretation, on Justice Jackson’s reasoning, “depend[ed] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”304 While Justice Jackson’s reasoning paralleled the methodology of the interpretive canons to the extent that it instructed courts to look at agency “consistency,” Skidmore did not provide a theoretical basis for its multifactor approach or an explanation for why the approach was appropriate. Nor did it explain how other factors with the “power to persuade” were related to the statute’s contemporaneous understanding and the agency’s customary practice.

Almost immediately, the Court inconsistently applied the new principles that it had articulated in Gray, Hearst, and Skidmore. The mixed-question analysis was embraced, in some cases, by the dissenting Justices in Gray,305 and rejected, in others, by Justices in the Gray majority.306 The analysis was embraced in some cases,307 and rejected in others on grounds that were hard to decipher.308 Still other cases made it hard to determine whether the Court was truly following a “mixed question” approach, as opposed to the broader principle that agencies receive deference for all legal interpretations, which was later adopted in Chevron.309

Leaving to one side the confusion in the case law in the year 1946, the Court’s cases, when set against the backdrop of the historical narrative, clarify a point of wider jurisprudential significance. In the post-Chevron era, it has become de rigueur to compare the bright-line approach seemingly articulated in Chevron (and its predecessors, such as Hearst) with the multifactor and contextual approach articulated by Justice Jackson in Skidmore. But it is possible that a third explanation captures the jurisprudential phenomenon of the 1940s era: both the Hearst and Skidmore standards were alternative twentieth-century attempts by a Court struggling to define the bounds of judicial review of expert decisions by generalist courts—and both are departures from the traditional interpretive methodology and intellectual framework that privileged contemporary and customary interpretations.

2. The Road to the Administrative Procedure Act

In his 1944 opinion in Skidmore, Justice Jackson remarked that there was “no statutory provision as to what, if any, deference courts should pay to” agency interpretations of statutes.310 Within two years, that would change as a result of developments within the political branches that were occurring in parallel with this new jurisprudence. In 1939, Representative Francis Walter and Senator Mills Logan introduced legislation to govern administrative procedure and judicial review in the House and Senate.311 The debate over the bill attracted intense national attention, with one congressman remarking that “[p]ractically every leading newspaper in the country has commented editorially on the contents of this bill. It has been spectacularized in the news columns and on the radio.”312 The bill passed the House and Senate, but President Roosevelt—on Attorney General Jackson’s recommendation—vetoed it on December 18, 1940.313 In doing so, he characterized the bill as “one of the repeated efforts by a combination of lawyers who desire to have all processes of government conducted through lawsuits and of interests which desire to escape regulations.”314 Roosevelt sought to deflect criticism of his veto, at least temporarily, by asking Congress to wait for the recommendations of a Committee on Administrative Procedure that he had asked Attorney General Jackson to establish following the introduction of the Walter-Logan bill in Congress.315

Roosevelt’s veto message prompted a heated reaction from Roscoe Pound, who excoriated it in a 1941 speech before the New York State Bar Association that was reprinted in the Journal of the American Bar Association.316 Pound dramatically claimed that the message was “much in the spirit of the absolute ideas which have been making headway all over the world in the past two decades.”317 In doing so, he specifically criticized the “recent[]” trend of “giving the interpretation of [statutes] to the executive, or to administrative officials.”318 He equated “tak[ing] away interpretation by the courts” and “leav[ing] interpretation of the provisions and directions of the law to the executive” with “enter[ing] upon the path leading to a lex regia” and “moving a long way from . . . the genius of our institutions [which] was opposed to the deposit of unlimited power anywhere.”319

On January 22, 1941, a month after the House failed to override Roosevelt’s veto of the Walter-Logan bill, the Attorney General’s Committee on Administrative Procedure submitted its report, accompanied by two draft bills from the “majority” (more favorable to administrative discretion and flexibility) members of the Committee and the “minority” (more favorable to codifying procedural requirements) members. The majority reasoned that agencies were too diverse to be governed by a single set of procedures and, hence, proposed continuous study and reporting of administrative procedures,320 along with a draft bill that did not codify a standard for the scope of review of agency decisions.321 The minority bill, by contrast, proposed a unified and comprehensive code of administrative procedure, including provisions setting forth standards for judicial review of administrative action for all relevant questions of (1) constitutional right, power, privilege or immunity; (2) the statutory authority or jurisdiction of the agency; (3) the lawfulness and adequacy of procedure; (4) findings, inferences or conclusions of fact unsupported, upon the whole record, by substantial evidence; and (5) administrative action otherwise arbitrary or capricious.322 The minority draft also included a judicial-review proviso stating that “upon such review due weight shall be accorded the experience, technical competence, specialized knowledge, and legislative policy of the agency involved as well as the discretionary authority conferred upon it.”323

With respect to questions of law, the majority of the Attorney General’s Committee reasoned that:

Even on questions of law [independent] judgment [by the court] seems not to be compelled. The question of statutory interpretation might be approached by the court de novo and given the answer which the court thinks to be the “right interpretation.” Or the court might approach it, somewhat as a question of fact, to ascertain, not the “right interpretation,” but only whether the administrative interpretation has substantial support. Certain standards of interpretation guide in that direction. Thus, where the statute is reasonably susceptible of more than one interpretation, the court may accept that of the administrative body. Again, the administrative interpretation is to be given weight—not merely as the opinion of some men or even of a lower tribunal, but as the opinion of the body especially familiar with the problems dealt with by the statute and burdened with the duty of enforcing it. This may be particularly significant when the legislation deals with complex matters calling for expert knowledge and judgment.324

Two aspects of this passage stand out. First, the report’s suggestion that “questions of law” might be approached as “a question of fact, to ascertain . . . only whether the administrative interpretation has substantial support” mirrors Dickinson’s argument on the law-fact distinction—a debt that the report acknowledged by quoting Dickinson’s analysis.325 Second, the majority asserted its recommendation tentatively, thereby indicating that the authors of the report did not believe that their position fully reflected the state of the case law, but rather proposed a new and idealized rule of interpretation. Buttressing that point, the report cited a single case to support the deferential standard of review that it (tentatively) proposed—Judge Augustus Hand’s Second Circuit opinion in SEC v. Associated Gas & Electric Co.326 Simply put, when the report was issued in January of 1941—before the Court issued Gray and Hearst—the majority could find no better case to support a deferential standard of review on questions of law.

3. Section 706 of the Administrative Procedure Act

For several years, issues of administrative reform were relegated to the backburner as Congress focused on the nation’s war effort.327 But when Congress finally enacted the APA to govern internal agency procedure and judicial review in 1946,328 one might have predicted that the Court’s incipient deviation from the traditional interpretive method would be swept away. After all, section 706 of the APA provided that a “reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”329 On its face, section 706’s instruction that a court “decide all relevant questions of law” appeared to contemplate some form of de novo review of agency legal interpretation. Section 706, moreover, prescribed the same standard of review for statutory provisions as for constitutional provisions by requiring that courts “interpret constitutional and statutory provisions” alike. Since at least Marbury, constitutional provisions had been subject to de novo review.330 And section 706 required, without suggesting that a deferential standard be applied, that courts overturn agency actions “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”331 Finally, section 706 established deferential standards of review for issues other than “relevant questions of law,”332 thereby indicating that Congress knew how to write a deferential standard into statute when it wanted to do so.

No less importantly, had the enactors of the APA wanted to require courts to give additional weight to agency expertise—and thereby, to codify or to leave in place the Supreme Court’s post-1940s jurisprudence on the question of deference—they had before them a template for doing so. Like the APA generally, secttion 706 was modeled on the proposed bill of the minority of the Attorney General’s Committee on Administrative Procedure.333 But there was a single, glaring difference: the minority proposal had included a proviso requiring that a reviewing court give “due weight” to agency “technical competence” and “specialized knowledge.”334 Section 706 omitted that language.335

Scholars have long debated what section 706’s instruction means. On the one hand, as Duffy explains, “commentators in administrative law have ‘generally acknowledged’ that section 706 seems to require de novo review on questions of law.”336 Similarly, Merrill observes that section 706 “suggests that Congress contemplated courts would always apply independent judgment on questions of law”337 and notes the “puzzling” fact that there has been no judicial “‘rediscovery’ of the language of the APA.”338 And Jerry Mashaw states that section 706 “seems to allocate firmly [questions of statutory interpretation] to de novo judicial determination.”339

On the other hand, Adrian Vermeule observes that “on reflection” the APA “is generally indeterminate on the crucial question” of deference, because “Chevron might be one of the legal rules courts are to apply.”340 That is because, under a “plausible reading” of the APA, where “agencies are exercising delegated authority, perhaps the meaning of the relevant law just is what agencies say that it is.”341 In a similar vein, John Manning suggests that “the framers of the APA meant its judicial review provisions to be a restatement of pre-APA standards.”342 It may even be the case that, to use Justice Scalia’s words, Congress enacted section 706 under “the quite mistaken assumption that questions of law would always be decided de novo by the courts.”343

Against the backdrop of the historical development of the law of judicial deference, however, the meaning of section 706 is easier to discern. The most natural reading of section 706—one that has, to my knowledge, heretofore escaped scholarly or judicial attention—is that the APA’s judicial review provision adopted the traditional interpretive methodology that had prevailed from the beginning of the Republic until the 1940s and, thereby, incorporated the customary-and-contemporary canons of construction. In other words, when Congress enacted the APA, it did in fact incorporate traditional background rules of statutory construction. It did not, however, incorporate the rule that came to be known as Chevron deference, because that was not (at the time) the traditional background rule of statutory construction. Under the traditional approach, a court would “respect”—or, to use modern parlance, “defer to”—an agency’s interpretation of a statute if and only if that interpretation reflected a customary or contemporaneous practice under the statute.

To put the point slightly differently, the contemporanea expositio and interpres consuetudo canons were considered part and parcel of de novo review. Courts routinely applied (and continue to apply) the two canons in construing constitutional provisions. By extension, in requiring courts to “interpret constitutional and statutory provisions” equivalently, Congress would have expected courts to apply de novo review and to apply those canons of construction to construe statutory provisions.

To the extent that it is relevant,344 the legislative history of the APA tends to confirm this interpretation of section 706. The APA arose out of a “fierce political battle over administrative reform” fought between proponents and opponents of the New Deal over what both factions believed to be “the life of the New Deal” itself.345 Proponents of the law repeatedly claimed that courts would be authorized to review questions of law. Representative Walter, the author of the House Report on the APA and the chairman of the House Subcommittee on Administrative Law, explained before the passage of the Act that section 706 “requires courts to determine independently all relevant questions of law, including the interpretation of constitutional or statutory provisions.”346 The House and Senate reports echoed this point, providing that “questions of law are for courts rather than agencies to decide in the last analysis.”347 The House report also included a “diagram synopsis” of the Act, which indicated that “reviewing courts . . . are to determine all questions of law . . . and hold unlawful action found . . . in violation of any statute.”348 At the same time, there was some evidence (from a June 1945 Senate committee print prepared by congressional staff) that an earlier version of § 706 was intended as a “restatement of the scope of review . . . necessary lest the proposed statute be taken as limiting or unduly expanding judicial review.”349 That “restatement” characterization made sense if Congress believed that the approach to statutory interpretation it was “restating” approximated de novo review.

The hearings that led to the APA’s passage also suggested that Congress was aware of the confusion created by the Supreme Court’s then-somewhat-recent forays into giving agency legal interpretation deferential review. In one of those hearings, Carl McFarland of the American Bar Association testified that he did “not believe the principle of review or the extent of review can or should be greatly altered”; that the “basic exception of administrative discretion should be preserved”; and that “the scope of review should be as it now is.”350 Representative Walter responded: “You say ‘as it now is.’ Frankly, I do not know what it now is . . . . [T]he Supreme Court apparently changes its mind daily.”351 The Walters-McFarland exchange suggests that Congress was aware of the shifting jurisprudence on the Court, and sought to reject one strand of it in codifying a standard in section 706.

To be sure, it is important to acknowledge the lack of clarity in these portions of legislative history. The only case that any of the participants cited was Consolidated Edison Co. v. NLRB, to which Representative Walter referred and which involved the “substantial evidence” standard for review of factual findings.352 At worst, however, the legislative history brings us back, full circle, to the APA’s text and the historical background against which it was adopted. In light of the jurisprudential developments preceding the APA’s adoption, the simplest explanation for section 706’s text and structure is that Congress intended to direct courts to apply the standard of review that had prevailed—almost uniformly—for nearly a century and a half prior to the codification of section 706. The prevailing standard of review was the independent-judgment rule, tempered by application of the traditional canons of construction, such as contemporanea expositio and interpres consuetudo.

4. The APA’s Aftermath

In the immediate aftermath of its passage, critical attention to the import and meaning of the APA was widespread. The highest profile, and ultimately most influential,353 of the contemporaneous commentaries was the Attorney General’s Manual on the Administrative Procedure Act, published a year after the APA’s enactment by Attorney General Tom Clark—who, shortly thereafter, was appointed to the Supreme Court.354 The manual characterized section 706 as “restat[ing] the present law as to the scope of judicial review” and as a “general restatement of the principles of judicial review embodied in many statutes and judicial decisions.”355 That characterization, whatever its merits, was inherently question begging when it came to section 706’s command on “questions of law”: What exactly was section 706 “restating,” the traditional independent-judgment rule or the Court’s then-recent forays into categorizing what appeared to be legal questions as factual questions? The manual offered no analysis—none at all—on that critical question.356

Many contemporaneous academic commentators sympathetic to the New Deal were similarly vague about the meaning of the “decide all relevant questions of law” language contained in section 706. Some said nothing at all about the phrase, suggesting (if anything) that they understood the rule, both before and after the enactment of the APA, to be that a reviewing court was to use independent judgment in interpreting legal text.357 Others observed that the Act “preserve[d] the customary dichotomy of law and fact, in spite of argument by distinguished commentators that these categories cannot in application be distinguished, and in spite of recent Supreme Court decisions giving support to such argument”358—thereby more strongly indicating that legal questions would be subject to a court’s independent judgment. Still others appeared to start from the premise that review of legal questions was generally de novo,359 but that section 706 incorporated the then-recent jurisprudence establishing a deferential carve out for “mixed questions of law and fact.”360 Notably, some commentators believed that section 706’s language would expand the scope of judicial review of questions of law, though in some unspecified way.361

On the other side of the ledger, critics of the Court’s recent case law had a different take on section 706. Senator Pat McCarran of Nevada, the chairman of the Senate Committee on the Judiciary at the time of the APA’s enactment, wrote an article in the American Bar Association Journal stating that the APA “simply and expressly provides that Courts ‘shall decide all relevant questions of law’”—with discretion committed “by law” to an agency only if “intentionally given to the agency by the Congress, rather than assumed by it in the absence of express statement of law to the contrary.”362 This provision, in McCarran’s view, “cut down the ‘cult of discretion’” that had “gained considerable currency in the last decade or so.”363

A notable contribution to the debate came from John Dickinson—the same John Dickinson who, drawing on the scholarship of James Bradley Thayer, had in important respects originated the notion that agencies should receive deference when applying law to facts.364 Surveying the APA’s review provisions, Dickinson said, effectively, that the Act had repudiated the legal realist’s perspective on the law-fact distinction.365 He made three important points. First, he observed that the APA “stands at the end of a long history which illumines every part of it; and aside from that history, no provisions of the Act, least of all those having to do with judicial review, can be adequately construed.”366 The terms of art that the statute used, on this sensible view, had to be understood against the history of those terms’ use in the preexisting jurisprudence.

Second, Dickinson noted that then-recent Supreme Court decisions had departed from the longstanding tradition of applying independent judgment to review statutory questions.367 It had “previously been understood that in a review proceeding questions of law are for the determination of the reviewing Court,” Dickinson observed, but “[i]ncreasingly, in recent years the Supreme Court has tended to treat many issues, which, when subjected to adequate analysis, would be seen to be issues of law, as lying within the discretion of an administrative agency, and, therefore, non-reviewable.”368 The notion that courts possess the “discretion to decide between doubtful rules of law has gradually permeated,” such that courts “have begun” to distinguish “between two kinds of questions of law: Those which involve what are sometimes spoken of as general law or legal principles, and others which involve the construction of technical terms and the application of knowledge thought to be expert and specialized.”369 Dickinson noted that, far from being a sign of judicial quiescence, the Court’s ability to redraw the line between questions of law and fact—and, hence, to “draw the line between what is ‘general’ and what is ‘technical’”—necessarily lodged great power in the Justices by “leaving to the Court’s discretion the determination of whether it would or would not review a legal question.”370

Third, Dickinson interpreted section 706 as a “clear mandate” repudiating this tendency. Section 706 required a reviewing court to decide questions of law “for itself, and in the exercise of its own independent judgment.”371 In Dickinson’s view, “[m]ore explicit words to impose this mandate could hardly be found than those . . . employed” in section 706.372

Leaving to one side its merits, the terms of the debate in the immediate aftermath of the APA’s passage tell us much about how a neutral observer would have understood the plain text of section 706. Both sides of the debate appeared to understand that the background presumption for interpretation of legal questions was de novo review. The debate occurred on the margins: did the independent-judgment rule govern “mixed questions of law and fact”? Dickinson, notwithstanding his earlier scholarship, argued that it did and that section 706 did not incorporate the Supreme Court’s recent interpretive experimentation. Some New Deal supporters, by contrast, claimed that section 706 incorporated the recent cases. The critical debate in the immediate period following enactment of the APA occurred against this backdrop—and not over the generalized rule of deference later articulated in Chevron.

C. The Irrelevancy of Text, the Forgetting of the Traditional Canons, and the Confusion Before 1984

The revival of the independent-judgment rule that the APA appeared to augur did not occur. Over time, interpreters of the APA failed to distinguish between the background rules that Congress sought to incorporate in section 706, and those it sought to reject. And they failed to appreciate that implicit in the incorporated-rule theory was the notion that the Court could no longer innovate on the appropriate rules for judicial review, but rather would have to subordinate its preferences to the balance struck by the 1946 Congress. The end result of these failures was the widely shared perspective that the doctrine of Gray v. Powell and NLRB v. Hearst Publications not only remained good law, but could be elaborated upon by the Court. As that process of elaboration occurred, it exerted a gravitational pull on each of the various strands of preexisting deference case law—resulting in a mishmash jurisprudence incorporating cases applying the mandamus standard, the traditional canons, and the principles of the 1940s. And as this elaboration occurred, the distinction between the many cases setting forth a de novo standard of judicial review and the cases articulating a deferential standard began to grow starker and ever more irreconcilable.373

Judge Friendly gave voice to these concerns when he observed that “there are two lines of Supreme Court decisions” on the subject of judicial deference “which are analytically in conflict.”374 Likewise, in a dissent from the Court’s decision to reject an agency interpretation of a statute, Justice Thurgood Marshall contended that, by ignoring principles of judicial deference, the Court had opened itself to the “frequently voiced criticism” that deference was invoked “only when the Court finds itself in substantive agreement with the agency action at issue.”375

The views of the two leading scholars of administrative law during this era, Davis and Jaffe, exemplify some of the problems with the various approaches. In his influential 1951 administrative law treatise, Davis categorically asserted that “the doctrine of Gray v. Powell has survived the APA.”376 At the same time, Davis observed that “sometimes the Supreme Court applies [the doctrine of Gray] and sometimes it does not,” with the “criteria that guide the use or non-use of the doctrine . . . exceedingly elusive” and “not necessarily all disclosed by judicial language.”377 The upshot appeared to be that Gray had emphatically survived the APA—but only to be acknowledged in some subset of the Court’s cases. For his part, Jaffe acknowledged that Gray and Hearst Publications had “recognized perhaps more openly than had been customary in the recent past the law- or policy-making function of the agencies” and could be construed as “an abdication of the customary power and responsibility of the judiciary.”378 He nevertheless claimed that the doctrine was “as traditional as it is sound” because it echoed Justice Brown’s reasoning in Bates.379 While expressing a preference for a deferential standard of review, Jaffe observed that the “practice of the Supreme Court . . . show[ed] the Court sometimes asserting the correctness of the agency rule, at other times going no further than to hold the administrator can but is not required to adopt such a rule,” with “this latter practice” having “given rise to profound difficulties of description and analysis, and to intense controversy.”380

D. Chevron Revisited: From Confusion to Clarity and the Repudiation of the Traditional Canons

With this past as prologue, it is fruitful to revisit the Court’s 1984 opinion in Chevron. The Court’s opinion famously neglected to analyze the text of the APA in announcing its canonical two-part test.381 Instead, the Court relied on two principal kinds of arguments: (a) an appeal to abstract political theory and (b) an appeal to the precedents of the Court. While a comprehensive evaluation of the first is outside the scope of this Article, the Court’s reliance on the latter is cast in a new light when compared to the historical record.

Of the several dozen cases that the Court cited to support Chevron’s two-part test,382 seven were decided before 1940. Each of those cases is consistent with the model of the traditional canons of statutory construction. Indeed, in one of them, Chief Justice Hughes rejected a party’s invocation of the “familiar principle . . . that great weight is attached to the construction consistently given to a statute by the executive department charged with its administration” by noting the following “qualification of that principle [that was] as well established as the principle itself”: “The Court is not bound by an administrative construction, and if that construction is not uniform and consistent, it will be taken into account only to the extent that it is supported by valid reasons.”383 Chevron cited Chief Justice Hughes’s opinion, but failed to engage with his reasoning.

Justice Stevens punctuated this list of cases with a citation of Pound’s The Spirit of the Common Law.384 That was certainly ironic. During the debates that preceded the passage of the APA, while serving as chairman of the American Bar Association’s Special Committee on Administrative Law, Pound had sharply criticized what he viewed as an emerging “administrative absolutism” posed by the modern administrative state,385 and had equated “tak[ing] away interpretation by the courts” and “leav[ing] interpretation of the provisions and directions of the law to the executive” with “enter[ing] upon the path leading to a lex regia.”386 One wonders what Pound would have thought of being cited as the sole academic authority in favor of the presumption of delegation announced in Chevron.

But the supreme irony of Chevron is that, to support the interpretive theory that it adopted, the Court cited cases like Edward’s Lessee that applied the contemporaneous-construction canon. Those cases had, consistent with Chief Justice Hughes’ opinion in Burnet, long been understood to require a court to hold an agency to its longstanding and contemporaneously adopted position. The rule adopted in Chevron said the opposite.

Relying on the same nineteenth-century cases Chevron cited, Justice Harlan in his 1904 Bates dissent had rejected a newly stated position by the government because he “had supposed it to be firmly settled that the established practice of an Executive Department charged with the execution of a statute will be respected and followed.”387 According to Justice Harlan, the Court’s decision not to “regard[]” the “practice of the Post Office Department, covering a period of sixteen years and more,” had “overthrown” “[t]he rule of construction which [the Supreme Court] ha[d] recognized for more than three quarters of a century.”388 Nowhere in the Bates majority opinion did Justice Brown dispute that Justice Harlan had accurately captured the holdings of cases like Edward’s Lessee.389 It appeared to be shared ground among the Justices in Bates that the contemporary and customary canons of construction did not apply when the agency changed its legal position.

Within eight decades—between Justice Harlan’s opinion in 1904 and the Chevron decision in 1984—the true meaning of the cases applying the contemporanea expositio and interpres consuetudo canons had been completely and entirely forgotten. The traditional rules of construction, to use Justice Harlan’s words, had finally been “overthrown.”

Conclusion

In this Article, I have traced the origins and development of the doctrine of judicial deference to executive interpretation. The fundamental payoff of the historical analysis has been the insight that judicial deference—as an interpretive theory practiced from the mid-twentieth century onwards and especially after the Court’s opinion in Chevron—is an innovation. Although some forms of “respect” for executive constructions did exist in traditional interpretive methodology, the modern doctrine finds no true historical antecedent in the nineteenth century, neither in the cases applying the traditional canons of construction on which Chevron relied, nor in the cases applying the standard for obtaining a writ of mandamus. The doctrine, moreover, cannot be squared with the text of section 706 of the APA, which is best read as an attempt to codify the traditional approach to statutory interpretation in the wake of experimentation with that approach by the Supreme Court in the 1940s. The doctrinal flaw of Chevron, thus, is that the case failed to understand the rationale behind the precedents on which it relied, thereby severing the doctrine of judicial deference from both the text of the statute Congress enacted to govern judicial review of agency action and the interpretive framework that Congress incorporated.

Perhaps Chevron can be justified on some other ground. Perhaps, in the modern administrative state, the cost-benefit analysis of different interpretive methodologies weighs so heavily in favor of judicial deference that the twentieth-century abandonment of the traditional canons should be viewed as a net positive.390 Perhaps, in light of the thirty-year run of the Chevron doctrine, Congress now actually intends to delegate lawmaking authority to agencies to fill gaps in statutes determined to be ambiguous.391 Or perhaps, given Chevron’s thirty-year run, it is simply too late to upset the deference applecart and return to the views that prevailed before the mid-twentieth century.392 But the proposition that Chevron has a basis in traditional interpretive methodology, the views of the Framers of the United States Constitution, or section 706 of the Administrative Procedure Act should be abandoned—that proposition is a fiction. To be sure, the canons of construction with which the Framers of the Constitution and the lawyers of the nineteenth century would have been familiar—those privileging customary and contemporary interpretations of legal texts—use terminology that bears a passing resemblance to the words now used to articulate the concept of Chevron deference. But those canons were far removed from Chevron, both in spirit and in application. The true story of the origins of judicial deference is that the current doctrine, as an interpretive theory, originated much later—during the twentieth century—out of a desire to abandon the formalism of the traditional framework.