Judicial Review of Administrative Policymaking

Abstract

Following the Supreme Court's decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., (1) scholars have delved into every nook and cranny of judicial review of agency statutory interpretation. (2) Yet inquiry into the more subtle and practically potent questions involving the broad category of review of administrative policymaking has languished. Perhaps administrative law scholars have mined the Chevron doctrine sufficiently and the time has come to rediscover the rich question of judicial review of this other source of policy. James Landis, the oracle of administrative law, observed in a landmark essay that [t]he ultimate test of the administrative [institution] is the policy that it formulates; not the fairness as between the parties of the disposition of a controversy on a record of their own making. (3) The founding generation of administrative law recognized that the administrative process grew out of the desire to develop a mechanism for effective policymaking. (4) This Essay asserts a categoric difference between judicial review of statutory interpretation and review of administrative policymaking. Ordinarily, the judiciary confronts statutory language de novo. In the administrative process, however, a reviewing court has before it a prior authoritative treatment of the statutory language. The existence of another faithful between the legislature and the courts instrumentally changes the role of the courts. (5) The Chevron doctrine recognizes one aspect of this instrumental difference. It demands that the courts accept that an authorized agent of the legislature has pronounced on the topic and it compels courts to give that meaning more weight than they would interpretations offered by ordinary litigants. It says that when a court is confronting an administrative interpretation of a statute, they must accept that interpretation if the meaning gleaned from the statute is not contrary to the clear meaning of the language and is reasonable. As to interpreting statutory language, the courts must give due deference to the prior agent, the agency created to execute the legislative program, and that deference is defined by the Chevron doctrine. In a sense, the judicial role here is not distinguishable in kind from the role played by courts in any statutory interpretation; the additional element is the injection of an authoritative agent. The doctrine does not cover another category of administrative decisions, however. Specifically, the Chevron doctrine does not address those agency decisions executing statutory language through the authorized creation of policy itself. These administrative decisions do not interpret language but actually carry forward the mandate of the statute; in doing so they extend the policy-reeking process begun by the legislation rather than figuring out what policy the language conveys. In this context, the judicial role cannot be defined as some special variety of the statutory interpretation. Rather, it must be conceived as a distinct category of judicial review. Although some of the impressive thinking that has constructed the Chevron doctrine, as well as the Chevron opinion itself, may be useful, review law about this category of administrative decisions, policymaking, must be developed independently. This Essay reaches into the existing law of review of administrative policymaking, informed by the work done in developing the Chevron doctrine, to urge a renewed attention to this category of judicial review. Although agencies are generally designed with dominant authority over their special policy-making area, courts retain some function over administrative policymaking. (6) The complex questions concerning the proper allocation of authority between the courts and the agencies--and, indirectly, the legislatures--in policymaking needs attention. Administrative law has well-established principles to guide courts in carrying out this responsibility. …