Chevron articulated a two-step analysis of statutory interpretation: the first (judicial) step is to determine the possible meanings of the statute, and the second (agency) step is to choose among those possibilities. Chevron held that courts must accept agencies’ “reasonable” interpretations of statutes if those interpretations fall within the possible range of a statute’s terms. The opinion’s term of reference, however, was a considered agency judgment made following established public procedures in relation to the agency’s particular mandate, and not presidential instructions issued from the privacy of the White House, in the absence of public procedures, and affecting the whole field of governmental action. In eliding these differences, I suggest, Professor Sunstein’s analysis overextends the executive’s authority to interpret statutes and would lead courts to abandon their fundamental job of defining the scope of agency authority and supervising the exercise of that authority. A powerful and expert executive does need room for action, but to have such an executive we must also have a judiciary willing to define and police the bounds of the executive’s authority.

Entitling his essay “Beyond Marbury,” Professor Sunstein suggests that “Chevron is properly understood as a kind of counter-Marbury for the administrative state.” Marbury v. Madison famously asserted that it is “emphatically the province and duty of the judicial department to say what the law is.” Chevron would be a counter-Marbury if it had held that statutory interpretation is, rather, the responsibility of the executive branch—and therefore, in the eyes of those who celebrate a strong, unitary executive, the responsibility of the President. But in my judgment, the Supreme Court’s sensible decision in Chevron can and should be read in a manner entirely consistent with Marbury.

With Chevron, the Court gave up the illusion that each question of statutory meaning has one sole determinate answer. Particularly in the administrative context, it is often impossible for courts to say more than what a statute could mean—to do more than to describe the boundaries of a set of possible meanings. But it is for the courts, always and irreducibly, to say what those possibilities are—to police the range of outcomes the statute permits. That is the Marbury function at a time when we acknowledge that statutes are indeterminate; that is the first step of the two-step Chevron analysis; and that question of range is indeed one to be “settled by the inclinations and predispositions of federal judges.” Within that range, policed by the courts, administrators can plausibly claim authority to determine the best policy outcome for today—at least, so long as they do so “reasonably,” following appropriate procedures and exercising what a court can find to be rational judgment. And while the range of possible meanings of a statute may not change with the years, particular resolutions of matters falling within that range well may.

But Professor Sunstein is alarmed at the political nature of courts’ judgments and seems to intend a lesser role for them. He argues instead that courts ought to cede a greater role to the executive. In so doing, Professor Sunstein rejects the Supreme Court’s signal in United States v. Mead Corp. that Chevron’s analysis applies only to procedurally intensive or regular agency behaviors, and not to more casual agency decisions. More dangerous still, Professor Sunstein’s approach would aid the recent inclination of several Justices to reduce further the legal constraints on executive action.

Let me illustrate the point in relation to the Supreme Court’s recent decision in Gonzales v. Oregon, which Professor Sunstein mentions glancingly (and in the briefing of which, the reader is entitled to know, I participated as an amicus curiae). In Gonzales, the Court considered the Attorney General’s claim that his office had authority to interpret the Federal Controlled Substances Act of 1970 (CSA)—a law that makes it a crime to possess or distribute addictive or psychotropic drugs—to preclude a doctor’s lawful prescription of morphine to assist another’s suicide in accordance with Oregon’s Death with Dignity Act. Without public procedure or consultation of any kind, the Attorney General had displaced Oregon’s law regulating the medical profession and had defined a new crime. Not surprisingly, a majority of the Court, with Justice Kennedy writing, rejected the Attorney General’s claim; perhaps the only real surprise was that Justice Scalia, with the new Chief Justice and Justice Thomas concurring, would have accepted it, relying on Chevron. The division was roughly the same as would occur in last Term’s final and more portentous discussion of presidential authority, Hamdan v. Rumsfeld.

The Attorney General’s claim was an entirely predictable, and professionally appropriate, claim by the government’s lawyer. Of course one argues for judicial deference to one’s client’s view of the law, if it might be entitled to it in a litigation in which its interests are at stake. Whether that view is entitled to influence, however,—and, if so, to what kind of influence it is entitled—are questions for others, the judiciary, to address. Merely saying it is so does not make it so. When the judiciary does address these questions, one should expect careful attention to the risks and rewards of answering them in one way or another. And these equations may differ with one’s assessment of the kinds of powers Congress has conferred on a given executive actor, the extent of that actor’s engagement with the public in the formulation of its view, the actor’s particular expertise, and so on.

The circumstances of Gonzales made it extremely unlikely that Congress had conferred such a power. In that case, the Attorney General had acted outside the structures of expert consultation that Congress provided in the CSA—indeed, had acted without any public procedure at all. On his own, the Attorney General had both displaced a considered state law regulating the medical profession and purported to define a new crime. It is difficult to imagine a more concerted assault on our ordinary principles of legality.

That the three dissenting Justices were the members of the Court as then constituted most strongly committed to a strong executive suggests the difficulty with Professor Sunstein’s otherwise brilliant analysis. Attentive in some respects to the problems of foxes in chicken coops, it pays insufficient care to the virtues of having someone other than the executive tend the fence around executive authority and take care that that authority is exercised in a manner subject to public participation and control. One can accept the bulk of Professor Sunstein’s analysis and nonetheless maintain that it is “emphatically the province and duty of the judicial department to say what the law is,” by framing the executive’s power to pinpoint the law within the bounds framed by judicial exercise of that duty, not outside of it. Doing so will lead one to just about the same place as Professor Sunstein reaches in respect of Chevron itself, but not to most of the specific conclusions that he reaches in Part II of his analysis, “Marbury’s Revenge?” The paragraphs following trace this analysis.

As early as 1940, the Supreme Court unselfconsciously revealed the tension between judicial and agency interpretation in an opinion long (and erroneously) thought to have sent “plain meaning” statutory interpretation to its grave. The case involved interpretation of a statute governing the Interstate Commerce Commission’s (ICC) regulatory authority, which the ICC had consistently interpreted (with support from other relevant executive agencies) to deny it the authority in question. At an early point in its analysis the Court reiterated the Marbury proposition that “[t]he interpretation of the meaning of statutes, as applied to justiciable controversies, is exclusively a judicial function.” Yet just a few pages later, after reciting the ICC and other interpretations, the Court remarked that

Here resolution of the tension between court and agency prerogative is not so hard. One sees that the Court is deciding the statutory question for itself, (one might say, Chevron step one) but in doing so is according any respect merited to the views of responsible others. The same approach—unmistakable judicial decision of the issue, but with attention in doing so to the agency’s view—characterizes its later iconic decision in Skidmore v. Swift & Co.

Chevron’s addition of a second step to the analysis makes it different, as was another iconic case of Skidmore’s times, NLRB v. Hearst Publications, Inc. In both these cases, the Court’s initial analysis of statutory meaning—its performance of the Marbury function—led it to conclude that within the bounds of statutory possibility, Congress would have wanted subsidiary questions, which one might frame as interpretation, to be decided by a responsible agency rather than by the courts, subject only to the usual judicial review of administrative action for “reasonableness.” In Hearst the relevant question was who was an “employee”; in Chevron it was whether a number of pollution sources on one industrial site could be treated as a single “stationary source.”

Professor Sunstein properly argues that these two cases are not equivalent—that there was an actual delegation in Hearst and merely a fictive one in Chevron. The thing to note, however, is that in both settings the Court attended to what it constructed, on its own, to have been Congress’s wishes. Operating within the province that is “emphatically” its own, it found for itself a sufficient reason in the statute to believe a task had been assigned primarily to another; the constitutionality of such an assignment, under appropriate judicial safeguards for its regularity, was and is not open to doubt. Once a court has found such an assignment, it is merely following its own nose when it concludes that its task is not to assign meaning to contested terms de novo but rather to assure itself that an agency’s interpretation of those terms has the indicia of administrative legality—for example, that the agency’s action falls within its legal authority, was made following any requisite procedure, is supported to whatever extent is called for by the known facts, and reflects reasonable judgment.

I doubt that Professor Sunstein and I would disagree about any of the foregoing. The difficulties arise when one moves from administrative decisions that exercise delegated authority, following public procedures and subject to judicial supervision, to less formal executive behavior—to behavior that does not profit from the same level of public engagement and may, indeed, escape the effective oversight even of politically responsible agency heads. Sunstein relies on cases like Hearst and Chevron—cases in which agencies followed formal, public procedures in carrying out delegated authority—for the much broader claim that courts must also defer to less formal executive behavior—to choices made away from public scrutiny and without full administrative oversight.

It is striking that the “most important” case Professor Sunstein invokes as exemplifying the Court’s tendency to sometimes give “relatively little deference to agencies,” Citizens To Preserve Overton Park v. Volpe, was the latter sort of case, and not the product of APA rulemaking or adjudication. The practice of intensive, “hard look” review of the reasonableness of agency action that this case foreshadowed, with its insistence on reason-giving and regularity, does not embody distrust of agency discretion in the sense of denying primary agency responsibility for the matter being reviewed. Instead, “hard look” review accepts the agency’s responsibility, but asserts the need for careful review given the consequences of agency action—and does so out of the same congeries of factors that Professor Sunstein evokes, including a healthy respect for the fox-henhouse problem. If we put aside the ordinary procedures for public engagement in executive action, including the possibility of reviewing it on the basis of some kind of administrative record, haven’t we simply set the fox free? There is a “high risk of unreliable or biased interpretations” where agency interpretations are not the product of public procedures; and that risk increases when the interpreter has some assurance that the very fact of its making an interpretation may entitle it to prevail.

Professor Sunstein most strongly urges the persuasiveness of Chevron analysis for these informal kinds of decision in Part II of his essay, entitled “Marbury’s Revenge?” As he has in previous essays, he expresses doubt about the soundness of the Court’s decision in United States v. Mead Corp., in which the Supreme Court refused to apply Chevron to a Customs Bureau interpretive letter that had not been the product of APA rulemaking or other public procedures. In my judgment, however, Mead and the decisions that have followed it—Gonzales most recently—get matters about right. Within Marbury, the courts have the duty to determine agencies’ authority to act—that is, the duty to determine whether Congress intended the agency to have the primary responsibility to interpret the law, and if so following what procedures, subject only to the usual judicial review of administrative action; or, rather, whether that primary responsibility lies with the courts. That duty is “emphatically the province and duty of the judicial department,” and is “exclusively a judicial function,” the irreducible minimum of the judicial task. And this is the duty the Court performed in Mead. This is not a restriction of Chevron’s domain unless we are to assume from the outset that Chevron marked an unprincipled retreat from courts’ duties. If it did mark such a retreat, we should be relieved that in Mead the judiciary has now discovered that it, and not the fox, is responsible for identifying the relevant fences.

The problem with the proposition that “pure questions of law” are for the courts, and mixed questions of law and fact are for agencies, is about the same. Administrative Law teachers for decades enjoyed torturing their students with the contrast between Hearst, where the Court said it had been given to the NLRB to say whether newsboys were “employees” within the meaning of the statute, and Packard Motor Car Co. v. NLRB, which seemed totally to disregard the NLRB’s view of whether foremen could come within the statute. But if we regard the fence—the difference between the question what a statute could mean and the question what it does mean—the cases are readily reconciled. In Hearst the question for the Court was whether “employee” could mean what the Board had concluded it did mean; and once the Court had located the fence and placed the NLRB’s choice reasonably within it, its function changed from decider to reviewer. In Packard the only question the Court was asked to decide was whether foremen could possibly fall within the Act; Packard’s only assertion was that they lay outside the fence, not that the NLRB had made an unreasonable judgment about a possible meaning. Deciding that issue was the Court’s prerogative.

So also in INS v. Cardoza-Fonseca, another opinion Professor Sunstein criticizes. In that case, Justice Stevens’s opinion addressed what the statute in question could mean—in other words, the location of the fence—and answered that question using an entirely conventional tool of statutory interpretation, namely, that different phrases used in proximity to one another in the same statute are to be given differing, not identical, meanings. The Attorney General had chosen identical meanings, and that possibility was excluded as beyond the pale. Questions about permissible meaning are irreducibly judicial.

On “jurisdictional” issues, the reader might expect me to insist that these questions are for the court. But this is so only at their initial stages, in my judgment. Whether one best characterizes a judgment about the extent of “public lands” or “employee” as jurisdictional depends, ultimately, on whether the agency in question has exceeded the latitude a reader of that statute would understandably have concluded Congress left to agency judgment. As in Hearst, setting the outer bounds of “employee” is irreducibly judicial work. Deciding who is an “employee” within those (judicially determined) bounds of possible meaning is for the agency, acting under the appropriate procedures and subject to judicial review.

Finally, Professor Sunstein sees a possible exception to Chevron for “Major Cases.” In my judgment, the Court’s observably closer supervision of agency judgments in such cases—even when agencies have fully complied with procedural formalities and have acted within room one could easily find that the statutory text affords them—is closely tied to the “nondelegation canons” toward which Professor Sunstein is more favorably disposed. In a later case than FDA v. Brown & Williamson Corp., the case Sunstein discusses in this regard, Justice Scalia poignantly observed that the Congress should not be found to “hide elephants in mouseholes.” This plangent proposition is a delegation canon, uttered by a Justice who self-evidently would like to be able to deploy delegation analysis if only he could persuade himself that judicially manageable standards existed. But Scalia cannot find those standards and so instead, on major questions, he often finds reasons to think agency action lies outside the statutory fence. A large enough surprise—a sufficient departure from what one could reasonably suppose congressional expectations to have been—requires further legislative action.

Brown & Williamson is just such a case. Whatever one could say in the abstract about the possibility of regarding nicotine as a “drug” and a cigarette as a “device,” years of agency inaction and affirmative representations to Congress had, in any realistic political sense, taken that action off the table. The conclusion that fresh congressional authority was needed should come as no surprise, and is no significant constraint on Chevron.

None of this is to deny, as other of Professor Sunstein’s scholarship has so strikingly shown, that in their opinions our judges reveal themselves to be politicians—those with the longest terms in office. Yet we dare not abandon the “least dangerous branch” and the restraint it can offer against shorter-term political departures from our culture of legality. Our hopes lie rather in what Roscoe Pound described as the toughness of the “taught tradition,” in the obligations of reason and sought coherence, and in the voice of scholars like Professor Sunstein when the perhaps inevitable politics become excessive.

A further hope for moderation might lie in turning the insights of Chevron to those settings where courts interpret statutes without an agency in the picture. In these settings, too, one can find statutes that are ambiguous— statutes for which it is readily possible to say what they could mean, but artificial, as if one were decoding instructions actually given, to say what they do mean. In such cases, too, one must give up the illusion that all questions of statutory meaning have determinate answers. Faced with such statutes, why should courts not be free, as if at common law, and like agencies under Chevron, to reason to the best outcome in current circumstances, without purporting to decide for all time what the statute precisely means? In such a case, the court deciding within the framework of textual possibility is also expressing a policy judgment; for it to endow that judgment with the quality of law for all time—correctable only by Congress—is to aggregate to itself a degree of authority that is the more objectionable for its demonstrable politicality. The judiciaries of other developed systems live easily without any such conceit. Might not ours?

This Essay perhaps seems a rather sweeping critique. Please observe how little disagreement you find here with Professor Sunstein’s brilliant exposition of the virtues of the Chevron approach. The suggestion here is only that if overextended—if taken to abandon the fundamental and irreducible judicial job of defining the field of agency play and then supervising the legality of agencies’ acts—its costs will be greater than we should ever wish. A powerful and expert executive needs room for action, and can do better in many ways than the courts; but the safety of having such an executive depends on our having a judiciary willing to define and police its bounds.

Peter L. Strauss is Betts Professor of Law, Columbia University.

Preferred Citation: Peter L. Strauss, Within Marbury: The Importance of Judicial Limits on the Executive’s Power To Say What the Law Is, 116 Yale L.J. Pocket Part 59 (2006), http://www.thepocketpart.org/2006/09/27/strauss.html.

Peter Strauss is wise as well as learned, and it is unwise and hazardous to disagree with him; I am most grateful for his generous and illuminating remarks on the question of judicial deference to executive interpretations of law. If we disagree about the answer to that question, it is largely because I give greater emphasis to the virtues of simplicity and seek a simple framework with which to approach the deference question. But let us begin with some common ground.

Professor Strauss and I both approve of the Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. We agree that the Court’s analysis in that case depended on a judgment that Congress had assigned, or delegated, law-interpreting power to the Environmental Protection Agency (EPA). We also agree that it is for courts, not the executive, to decide whether the law contains any such assignment. Both of us emphasize that when an agency has chosen an impermissible reading of a statutory term, it has acted unlawfully. We agree that even for questions of jurisdiction, an agency may well have considerable room to maneuver.

At the same time, Professor Strauss offers two objections to my approach. First, he contends that that approach would give too much power to the executive, because I call for judicial deference to “casual agency decisions” and would “aid the recent inclination of several Justices to reduce further the constraints on executive action.” Professor Strauss does not believe that deference is appropriate for agency decisions that are not a product of public consultation and participation. (Throughout I use the term “agency” and “executive” interchangeably. It is true that some agencies, including several discussed here, are independent regulatory commissions, whose heads are not at-will employees of the President; but such commissions are subject to multiple forms of presidential control, and so I do not give them separate treatment.)

Second, Professor Strauss believes that for major questions, involving a “large enough surprise,” independent judicial judgment, rather than deference, is due. Here he refers, with approval, to a nondelegation concern—one that would forbid agencies from producing significant surprises, or large-scale departures from what the enacting Congress likely expected, on the ground that Congress should not be taken to have delegated agencies the authority to produce such surprises or departures.

If these objections are accepted, the law-interpreting power of the executive would be limited in two ways. First, the executive would not receive deference when its decisions were not preceded by the kinds of procedural safeguards that promote public consultation and participation. Second, agencies would not receive deference with respect to interpretations that produce major (and surprising?) changes in the status quo. Professor Strauss has certainly offered plausible arguments on behalf of these limitations, and his arguments have clear foundations in current law. My main concern is that they threaten to make the scope-of-review question too unruly, and to do so without producing any sufficient compensating gain. Let me take up these possibilities in reverse order.

II. What’s Major?

Suppose that a statute is ambiguous and that the executive interprets it in a way that might surprise the enacting Congress. The EPA might conclude that the word “source” includes plants, not particular smokestacks, or that DDT poses an unreasonable risk, or that greenhouse gases count as air pollutants; the Department of the Interior might adopt a broad or narrow interpretation of what it means to “harm” an endangered species; the Food and Drug Administration (FDA) might decide to regulate tobacco as a “drug.” Are these decisions major and surprising from the standpoint of the enacting Congress? At first glance, they certainly are. But the agency’s plant-wide definition of “source” was the issue in Chevron itself, and I do not believe that Professor Strauss means to say that Chevron was wrong on its facts. The initial problem, then, is that no simple principles can distinguish major questions from minor ones, and the absence of such principles suggests that any exception for “major questions” threatens to confuse and to unsettle the deference question in numerous cases. When an agency is interpreting or reinterpreting an ambiguous provision, its action can often be characterized as “major.” Indeed, that is why the question is being litigated.

Perhaps Professor Strauss wants to reduce this problem by emphasizing that an agency’s decision should be deprived of Chevron deference only if that decision would count not merely as major but also as an unquestionable “surprise” to the enacting Congress. He might be saying that under such circumstances, the agency’s decision contradicts the clear meaning of the governing statute (and thereby fails to pass what is sometimes referred to as Chevron Step One). If so, he may be right; it is always possible to object that the agency has violated the relevant source of law. As I read him, however, Professor Strauss means to go further and to suggest a serious limitation on the scope of Chevron. The problem with any such limitation is that the executive is not generally bound by Congress’s original expectations about the likely applications of an ambiguous term. Statutory language is meant to extend over significant periods of time and to adapt to new factual understandings. Perhaps the Eightieth Congress, which passed the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in 1947, did not believe that DDT caused serious risks, but as new facts emerged two decades later, the EPA could certainly so find. Perhaps the Ninety-first Congress did not believe, when it passed the Clean Air Amendments of 1970, that lead posed the kinds of risks that would justify a national ambient air quality standard, but the statutory language is what matters, not Congress’s expectations about its reach.

Perhaps Professor Strauss means, most narrowly, that nondelegation concerns suggest that when the executive interprets an ambiguous term in a way that produces a massive and surprising departure from original congressional expectations, the standard kind of Chevron deference is unavailable. This argument is not without appeal; it may well be jarring to think that the executive may, as part of ordinary rulemaking, produce significant departures from congressional expectations. But on reflection, there is a good argument that this should not be jarring at all, at least if the executive is interpreting an ambiguous provision. If Congress has delegated rulemaking authority to the agency, and if the agency is dealing with ambiguous terms, then Congress should be taken to have granted the executive the authority to surprise the enacting legislature; return to Chevron itself. Because agencies are expert and accountable, their interpretations of genuine ambiguities deserve deference (so long as they are reasonable). If the EPA seeks to regulate greenhouse gases under ambiguous provisions, it is entitled to do so, even if the enacting Congress would be quite surprised by this massive and perhaps even startling turn of events. Recall that if Congress is both surprised and alarmed, it can enact legislation that overturns the executive’s interpretation.

III. Procedures and Deference

It is easy to understand Professor Strauss’s emphasis on the value of procedural formalities and hence his suggestion that if the executive’s interpretation has been adopted without any kind of public participation and consultation, then it does not deserve deference. Indeed, the Mead Court appears to have thought along similar lines. On this view, procedural formality guards against agency unreasonableness and gives the agency an incentive to increase public participation. For these reasons, it might be thought that courts should defer only to decisions that follow formal procedures. Under Professor Strauss’s view, the executive has a choice. It can issue an interpretation without procedural safeguards and face more independent judicial scrutiny, or it can ensure public participation and receive deference. I am not certain that Professor Strauss is wrong to say that Chevron deference ought not to apply to decisions not preceded by public consultation of one or another kind. But there are two problems with that conclusion.

The first problem is that I am not sure whether Professor Strauss means to endorse current law, or instead to suggest a friendly but important amendment. Under current law, it is not the case that Chevron deference does not apply when agencies have not used formal procedures. When such procedures are absent, here is existing law in a nutshell: Chevron deference does not apply, except when it does. Lest you think that I am joking, here is the Court’s explanation of why, and when, Chevron applies to agency decisions not preceded by formal procedures:

Does Professor Strauss mean to endorse this kind of “test”? I hope not. The problem is that the Court has left litigants and lower courts quite at sea—unable to know, in advance, whether the agency decision falls within Chevron or instead faces the more independent review suggested by Mead. Because the law is so unruly, a great deal of litigation must be devoted to the threshold inquiry. But perhaps Professor Strauss would prefer a friendly but significant amendment to current law, in the form of a simpler rule to distinguish between Mead cases and Chevron cases. Perhaps he believes that the Court ought to say that Chevron applies only when the executive has used a statutorily specified process for consulting the public. If so, my concern about complexity and unruliness will be alleviated. But there is a second problem. To see why, let us consider an example.

Suppose that the Equal Employment Opportunity Commission (EEOC) gives a broad reading to some statutory term of art—say, “major life activities.” Suppose that the EEOC concludes that “running” and “typing” count as major life activities, so that those who are unable to run, or to type, count as disabled if they are substantially limited in one or the other of these activities. Suppose finally that the EEOC does not reach that conclusion after any kind of formal proceeding—perhaps because it lacks the authority to conduct such proceedings (or to issue legislative rules), or perhaps because it believes that the proceeding would be excessively time-consuming. Should the Court deny Chevron deference to the agency?

I do not claim that this is an easy question. It is possible to say, as Professor Strauss does, that the Court should instead give the agency’s conclusion the lower level of weight signaled by Mead. But it is also possible to say that if the court feels free to choose its own interpretation of the (by hypothesis) ambiguous terms, it will ultimately be making a decision of policy—one that is best made by the EEOC, not by judges. I am stipulating that the phrase “major life activities” is ambiguous as applied to “running” and “typing,” and that reasonable people could resolve the ambiguity either way. If so, the EEOC’s judgment inevitably depends on an assessment of questions of fact and value. Perhaps the judgment would be better if it followed formal procedures. But as between a (reasonable) judicial judgment about what count as “major life activities,” and a (reasonable) judgment from the executive, it seems best to follow the latter—at least if we emphasize that in hard cases, the judgment of the court may well depend not on access to some brooding omnipresence in the sky, or on a reading of the divine or natural law of disability, but on whether that court consists of Republican or Democratic appointees.

In sum, I fear that the system that Professor Strauss favors might introduce undue complexity while also giving undue policymaking discretion to federal judges. But suppose that he is right and that I am wrong. If so, is there a method for accommodating my concerns? Here is one possibility, which I offer by way of conclusion.

In many cases, the choice between Mead and Chevron, however confusing and even heated, will not ultimately matter. Some of the time, the executive will lose even if Chevron provides the governing standard. Some of the time, the executive will win even if Mead provides the governing standard. In either event, courts can save themselves a lot of difficulty by declining to resolve the threshold question and announcing that the agency loses, or wins, whatever that scope of review. They might say, “We may assume, without deciding, that Chevron provides the governing standard. Even if this is so, the agency’s interpretation is unlawful, because it is inconsistent with clear congressional instructions.” Alternatively, they might say, “We may assume, without deciding, that Mead provides the governing standard. Even if this is so, the agency’s interpretation is lawful, because it is plainly consistent with congressional instructions.” Perhaps Professor Strauss, and other skeptics about broad readings of Chevron, might be willing to accept this effort to eliminate unnecessary disputes about scope of review—and to promote the virtues of simplicity.

Cass R. Sunstein is the Karl N. Llewelyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago.

Preferred Citation: Cass R. Sunstein, The Virtues of Simplicity, 116 Yale L.J. Pocket Part 70 (2006), http://thepocketpart.org/2006/09/27/strauss.html.

In considering the virtues of simplicity, one needs to worry how a fox might exploit it. What are the implications of Professor Sunstein’s analysis, I’d ask, for presidential behaviors and claims, released from a judicial check? Professor Sunstein’s last entry in this debate, entitled The Virtues of Simplicity, only addresses the behavior of particular agencies, as if that were all that was at stake. The President appears only in a brief passage declining to distinguish between independent regulatory commissions and other agencies. In focus rather are such matters as the EEOC’s conclusions whether typing or running are “major life activities.”

That brief passage acknowledges what is otherwise only implicit in his essay, that “executive action” is subject to “multiple forms of presidential control.” I invite him, then, to focus on the effect of presidential instructions to agencies regarding how they should interpret laws committed to their administration—in particular, to notice what rejecting Mead’s caveat to Chevron might do for presidential signing statements. In signing new legislation empowering some agency to act, the President tells the agency how he interprets the new law, and therefore how it must interpret it. Probably the agency will obey these instructions; it is perhaps even the case that, as an internal matter, it must, although this is a question that has divided attorneys general since the beginning of the Republic. (The Constitution, after all, twice speaks of “Duties” or “Powers” being assigned to “officers,” not to the President; and this is typically how Congress legislates. Under the statutory terms, then, it is for the agency to decide what to do, subject only to the President’s possible decision to replace its administrator with one more willing.)

See how signing statements permit the President to evade the checks and balances we ordinarily imagine at work. As an alternative to the veto, they permit him to escape the veto’s considerable political costs. And if the view he states is one that will command judicial deference, how will his subordinates escape his claim to obedience? Dismissal, like the veto, is publicly visible, politically costly, is checked by the Senate’s role in appointments. The signing statement does not share these characteristics.

Sunstein’s view encourages the President’s attorney to argue for Chevron deference to his interpretation—as in the Gonzales v. Oregon example Sunstein still does not address. It does not matter, since the President is the chief executive, that the decision was assigned elsewhere. Nor does it matter that the public has not been heard, that the President is not an expert (as the EEOC is) in assigning meaning to such phrases as “major life activities,” indeed that the issue has arisen in the abstract (outside the informing context of some particular dispute), nor, finally, that the President’s responsibility for such particulars is at best diffuse. Free of the political costs of the veto or high-visibility firing, free of the legality checks of procedural conformity and public discussion, the President has also found the means to be free of significant judicial control. He has escaped the checks and balances engine that has so long helped preserve our rule-of-law culture.

Why should we wish so to uncabin an authority whose ambitions and dangers are already so evident? To be sure, assigning the responsibility for complex and subtle analysis to fallible and sometimes political judges has its risks. They can fail to protect us against presidential excesses. But they might succeed in asserting the claims of law, as five Justices did in Gonzales and Hamdan v. Rumsfeld. Would we be safer to remove those tools from their hands? Simple rules put in the hands of the ambitious and readily turned to the service of their ambitions have insufficient virtue.

Peter L. Strauss is Betts Professor of Law, Columbia University.

Preferred Citation: Peter L. Strauss, Exploiting Simplicity, 116 Yale L.J. Pocket Part 77 (2006), http://www.thepocketpart.org/2006/09/27/ strauss.html.

Professor Strauss is concerned that if the President is entitled to Chevron deference, he will be “uncabin[ed].” If the more modest level of deference in Mead, rather than the higher level of deference in Chevron, were necessary to ensure that rule-of-law constraints apply to the President, then I would enthusiastically agree with Professor Strauss. It is clear that Mead produces more confusion and complexity. Do we receive enough in return?

If not, here’s why. Chevron is no blank check to the President. A headline: In courts of appeals rulings involving the National Labor Relations Board and the Environmental Protection Agency, the agency loses, in Chevron cases, in over one-third of the decisions!. An important question is whether the level of agency losses would be much higher if Mead supplied the governing standard; if the executive loses as often under Chevron as under Mead, the complexity introduced by Mead cannot possibly be justified. Within the Supreme Court, the evidence is mixed. Indeed, the validation rates of no fewer than seven of the nine Justices (Stevens, Souter, Breyer, Ginsburg, Rehnquist, Scalia, and Thomas) are statistically identical in Mead and Chevron cases.

But suppose that Professor Strauss is right to think that validations of executive action are less likely under Mead than under Chevron. Is the lower level of validations wonderful? Before giving an affirmative answer, recall that judicial review of executive interpretations of law is affected, in hard cases, by whether the panel consists of Democratic or Republican appointees. Recall too that resolution of ambiguities, in such cases, often calls for judgments about policy and principle. Are we better off if those judgments are made by federal judges, rather than by the President and those who work under him? (Maybe you are suspicious of the policy judgments of the President, but you might want to be suspicious of the policy judgments of courts, too.)

Professor Strauss invokes Gonzales v. Oregon, in which the Court held that the Attorney General may not ban doctors from prescribing drugs for use in physician-assisted suicide. In my view, the simplest analysis of that case asks, “Was the Attorney General’s decision unlawful under Step One or Step Two of Chevron?” There is certainly a strong argument that Step One was violated.

But my basic claim is broader. The lower level of deference in Mead increases complexity while also strengthening judicial power to resolve statutory ambiguities, a task that often calls for judgments of policy and principle; and Mead does this even though Chevron already requires courts to invalidate presidential decisions that (a) clearly violate the law or (b) count as unreasonable. Is Mead is worth the candle? It’s possible. But at best, the jury is still out.

Cass R. Sunstein is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago.

Preferred Citation: Cass R. Sunstein, Costing Mead, 116 Yale L.J. Pocket Part 79 (2006), http://www.thepocketpart.org/2006/09/27/strauss.html.

To be sure, the Mead check is imperfect and itself possibly infected by politics. Professor Sunstein’s recent “Empirical Investigation of Chevron” with Thomas Miles surely confirms our sense that judges’ politics can affect outcomes in hard cases. And we have some reason to fear that the manner in which judicial appointments are made today, especially to the Supreme Court, can reinforce this phenomenon. So, if judges are going to be somewhat political, do we simply give up on them as a source of independent judgment about the law?

At one level he seems to think not—agencies lose under Chevron in over one-third of the decisions, so I should be reassured that that case is “no blank check to the President.” But then these decisions too are politically infected; indeed, Chevron decisions are the subject of his analysis, not Mead. With twenty years’ results under Chevron, the sample size is still “small” and “limited.” Although he asserts that for seven of nine Justices Mead outcomes are “statistically identical,” that case is too recent and the precedents following it too few to imagine statistical validity to that claim; and if indeed the results were identical, there would be no basis to imagine any greater degree of politicality to them.

Really the disagreement between us is that Professor Sunstein prefers having legal judgments made in one place—the executive branch—even when they are made under circumstances lacking any but a political pedigree. The public need not have participated. Congress need not have assigned the lawmaking function, even implicitly. There need be no opinion (as would result from an adjudication) or statement of basis and purpose (as notice-and-comment rulemaking would provide). The internal processes that produced the interpretation may have been completely opaque; and when such an interpretation emerges from the White House, it will have been taken, not by those to whom Congress entrusted it, but by officials (rarely the President himself) lacking expertise in or responsibility for the particular subject matter. The political claims of the White House suffice.

However imperfect the judicial check on the politicized judgments of the White House, it is a check. And if the presidential will is entitled to prevail, the “internal checks and balances” that Professor Kaytal celebrates will also have been seriously compromised. If an agency’s political leadership can be assured that courts will simply accept the view uttered in a presidential signing statement, why need they attend at all to the questions and contrary propositions that may be raised by professional staff in predecisional memos that most likely will never see the light of day?

Chevron did indeed cite the President’s political leadership as an element supporting the level of deference it was according to the EPA’s judgment in that case—but it was according that deference to an agency judgment that married expertise and politics, that was taken on a record after public procedures, and that was accompanied with a significant amount of explanation. In Chevron, the EPA’s judgment did not rest on the virtues of politics alone, any more than the Court’s did. A judgment that does not rest on the same bed of conjoined influences, expert as well as political, that is not attended by the same reassuring procedures and explanations, ought not be given legal force. To do so is not only to handcuff the courts; it is also to turn loose the winds of politics within executive administration.

Peter L. Strauss is Betts Professor of Law, Columbia University.

Preferred Citation: Peter L. Strauss, The Virtue of Checks, 116 Yale L.J. Pocket Part 81 (2006), http://www.thepocketpart.org/2006/09/27/ strauss.html.