Chevron and Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning of the Administrative Procedure Act
Mike Rappaport
Recently, I published a piece on Chevron and the original meaning of the Administrative Procedure Act. While most originalist work has focused on the Constitution, there is some work on statutory originalism in general and on the APA in particular. See, e.g. this piece by Evan Bernick.
My article explores whether Chevron can be reconciled with the original meaning of the APA. In particular, it argues against Cass Sunstein and Ron Levin, both of whom defend Chevron as not inconsistent with the APA's original meaning. While I acknowledge there are a couple of plausible takes on the original meaning of the APA, none of them support Chevron deference. At most, they support a narrower type of deference. Here is the abstract:
Chevron and Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning of the Administrative Procedure Act by Michael B. Rappaport
The Chevron doctrine, which requires courts to defer to an agency’s interpretation of a statute that it administers, is a central component of the administrative state. But in recent years, the doctrine has been strongly criticized for being inconsistent with the original meaning of the Administrative Procedure Act (“APA”).
In a recent article, Cass Sunstein defends Chevron against this charge, arguing that the original meaning evidence is equivocal. Sunstein maintains that one cannot clearly reject Chevron and therefore the Supreme Court should not overturn the case.
In this Article, I criticize Sunstein’s defense of Chevron and argue that Chevron is plainly inconsistent with the APA’s original meaning. Some commentators reject Chevron on the ground that the APA does not allow for agency deference. While I agree with these commentators that this is the best reading of the APA, I also agree with Sunstein that this is not the only possible reading of the statute. But this lack of clarity about the APA does not help Sunstein’s argument. Even if one interprets the APA’s text as Sunstein does, this still does not justify Chevron deference. Instead, it results in deference for mixed questions but no deference for pure questions of law. This interpretation would involve a narrower type of deference that would significantly trim the Chevron doctrine.
The Article then reviews and criticizes a more recent defense of Chevron deference by administrative law scholar Ronald Levin. While Levin presents additional arguments for Chevron deference, I conclude that these arguments are no more successful than Sunstein’s.