Delegation and Deference to Agencies

Question 1

Brand X rule

Answer 1

A court should defer to an agency’s interpretation if there is judicial precedent on-point (validating the agency’s interpretation), AND

1. That court found the statute unambiguous applying traditional tools of statutory construction.

If not - if there is no judicial precedent on-point, or if the judicial precedent didn’t find the statute unambiguous using traditional tools of statutory construction, then apply the Mead test.

Question 2

Mead test

Answer 2

Consider, here, whether the agency’s interpretation is worthy of Chevron deference. Ask:

1. How formal are the procedure?
   a. How many procedures does the agency apply?
   b. Who applies/uses the procedures?
2. How important is deference to the administration of the statue?
3. How longstanding is the agency’s interpretation? (can be used even if not borne from formal procedure)

If none of these support a finding of deference, and there is prior precedent - stare decisis.

If none of these support a finding of deference, and there is not prior precedent - apply Skidmore deference.

If these do support a finding of deference, then apply Chevron deference.

Question 3

Skidmore rule

Answer 3

Consider how persuasive the agency’s reasoning is. Ask:

1. How thorough is the agency’s consideration?
2. How valid is the agency’s reasoning?
3. How consistent is the agency’s action with its earlier and later pronouncements?
4. How persuasive is the agency’s action, in general? (all other factors)
   a. What is the agency’s expertise?
   b. What is Congressional intent here?
   c. Is there stare decisis issues?
   d. What about democratic accountability?

Question 4

Chevron rule (step one and step two)

Answer 4

Step One: Ask whether the statute is silent or ambiguous with respect to the precise question.

a. Use tools of statutory interpretation to consider whether the particular provision is ambiguous or not.
2. If the provision is NOT silent or ambiguous, and Congress’ intention CAN be divined, then give Congress’ intention effect.
3. If the provision IS silent or ambiguous, and Congress’ intention CANNOT be divined, then move to Step Two

Step Two: Ask whether the agency’s interpretation is reasonable.

a. If the agency’s interpretation is reasonable, then the agency’s interpretation governs.
b. If the agency’s interpretation is not reasonable, then the court interprets.

Question 5

Distinction between Chevron test and Skidmore test

Answer 5

i. Agency is now the primary interpreter when ambiguous
ii. Interpretation is not necessarily best but reasonable
iii. Less emphasis on consistency, more emphasis on agency expertise and opportunity to study and change course based on changed circumstances which may include purely political/policy changes.
iv. More emphasis on uniformity.

Question 6

FDA Tobacco (changing an agency’s position)

Answer 6

When an agency changes position, in determining whether to give the new position deference, ask:

i. Is this a major question for Congress? (if so, then proceed with caution)
ii. Is there legislative acquiescence?
iii. Is there legislative reliance?
iv. What are the pragmatic consequences of the agency action?
v. Are there new facts that warrant a change in approach?
vi. Are there new policy justifications for the action?
vii. What does the whole act say?

Question 7

Major Question doctrine

Answer 7

Presumption that Congress does not delegate major questions to the agency unless expressly stated (elephant out of a molehill canon).

In general, when considering whether a question is a major question, consider:

i. Does it invoke Constitutional principles or authority of agency?
ii. Does it have an impact on the economy?
iii. Is it politically controversial?
iv. Does it have a significant impact on the regulatory scheme?
v. Does it impact a large number of citizens?
vi. Does the agency have expertise in the area, or does it lack expertise?