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Ilan Wurman: The Specification Power
Michael Ramsey

Ilan Wurman (Arizona State University - Sandra Day O'Connor College of Law) has posted The Specification Power on SSRN.  Here is the abstract: 

The executive power to interpret law is at the center of modern debates over administrative law. One prominent set of scholars claims that deference to executive interpretations of law has no historical or constitutional basis, yet another that broad delegations from Congress make such deference inevitable. Because statutes will invariably contain significant ambiguities or “gaps,” it is better that politically accountable and expert agencies resolve or fill them—a justification seemingly running counter to Article III’s purpose of vesting power to interpret law in courts with judges insulated from political accountability. 

This Article challenges both accounts. It shows that this debate is interminable because the two sides are rooted in radically different conceptions of the agency power being exercised. The doctrine and the skeptics assume that the agency power at issue is one over law-interpretation, and hence (according to the skeptics) suitable for courts. The view of the deference proponents, on the other hand, is premised on the very different understanding that interpretation inherently entails lawmaking or that, although their acts are described as interpretation, administrators and judges are actually making law in the interstices of statutes. 

This Article aims to show that neither account is fully correct because both courts and agencies have historically exercised two kinds of powers when implementing a statutory scheme—a power of law-interpretation and a power of “law-specification”—and that both powers have firm constitutional roots. The constitutional sources further suggest that, as an originalist matter, even if deference to an agency’s interpretation power is unsupportable, deference (if one can even call it that) to an agency’s specification power may be fully consistent with the constitutional scheme of separate powers. Calls to overturn deference, although perhaps technically correct, may therefore be overblown if agencies are usually exercising their powers not of interpretation, but of specification.