Questions of Law, Questions of Policy and Judicial Review

Doubts are gathering about the future of Chevron deference in the United States. Before he retired from the Supreme Court of the United States, Justice Kennedy expressed some concerns about Chevron; two state supreme courts (Wisconsin and Mississippi) have materially reduced the deference they give to administrative interpretations of law; Justice Scalia, a strong defender of Chevron (albeit with a robust ‘step one’ involving the use of every tool of statutory interpretation he could get his hands on) has been replaced by Justice Gorsuch, a Chevron sceptic; and some members of the American legal academy, most spectacularly Philip Hamburger, have denounced the supposed lawlessness of the administrative state, with Chevron as the principal bête noire.

As I hope to explain in more detail another post, these doubts are overblown, not least because the anti-Chevron arguments — and those of the soi-disant anti-administrativists more generally — do not withstand scrutiny. Nonetheless, as soon as doubts emerge about the future of an important legal doctrine, advocates for various alternatives begin jockeying for position. There is a danger, however, that relative newcomers to the Chevron debate will miss important nuances.

Professor Larry Alexander is a prominent (and very good) constitutional scholar and legal theorist. In “The Constitutional Limits of Chevron Deference: Meaning and Policy”, Professor Alexander descends from the heights of constitutional theory to explain Chevron to the mere mortals who have been working through its foundations, scope, structure and consequences over recent decades. In fairness, Professor Alexander is aware that he approaches the topic with the “typical scholar’s conceit that I can settle things once and for all” and, perhaps, tongue somewhat in cheek (at p. 1). His basic insight is that “understanding the limits of Chevron deference requires distinguishing questions of meaning and questions of policy” (at p. 9): meaning is for the courts, policy for the agencies. On this, Professor Alexander develops two arguments.

First, he argues that courts may not allow agencies to interpret an ambiguous statute so as to give the statute a meaning other than the one “the court believes…is more probable than alternative meanings” (at p. 3). Except, that is, where Congress, within the limits of the nondelegation doctrine, passes a statute “in which it declares that it prefers meaning A, but that if the agency believes meaning B would be better policy, then the agency has the authority to make B the meaning” (at p. 4). With respect, however, this is precisely the sort of question that Chevron step zero (and, in Canada, the standard of review analysis, with legislative intention as its lodestar (nominally, at any rate)) is designed to answer.

Second, Professor Alexander accepts that deference is appropriate in situations where the statutory language is vague:

[W]ith vague standards, interpretation is not an issue. Rather, interpretation is complete when the court determines that a statutory term is a vague standard. The fleshing out of a vague standard is not interpretation but is a constrained policy choice, and one that, within limits, may be delegated to an agency. Thus, when the court defers to an agency’s implementation of a vague standard, it is not deferring to agency interpretation of the statute. Rather it is deferring to the agency’s choices for implementation of the statute (at p. 9).
The difficulty here is that Professor Alexander’s approach, without much more, would mean there would be no room for judicial review by the courts of the choices made by agencies. The law would ‘run out’ as soon as a court determined the statutory language to be vague. So, if an agency changed its interpretation of the statute without giving reasons, applied it in a disproportionate manner, or choose one of a number of competing interpretations by consulting tarot cards or tealeaves, Professor Alexander would be constrained to say that the courts could not intervene, for courts are limited to the domain of law and may not enter the domain of policy choice. At the very least, the implication is that Professor Alexander’s distinction between meaning and policy is not enough, on its own, to resolve the Chevron debates for all time.

As it happens, this (to my mind) cartoonish view of deference in administrative law has some supporters amongst the anti-administrativists. They quite like the idea that agency policy choices are immune from judicial review because it nourishes their narrative of an lawless administrative leviathan run amok (see Catherine Sharkey). But they fail entirely to account for the large body of decided cases and academic literature which discuss the requirements of lawfulness to which agency changes of position and applications of statutory language are subject (see Gillian Metzger).

A more sensible discussion of vagueness in administrative law can be found in Miller JA’s reasons in Pong Marketing and Promotions Inc. v. Ontario Media Development Corporation, 2018 ONCA 555:

Concretizing vague criteria is a creative yet bounded role. It is different in kind from the task of resolving legislative ambiguity, which is presents a closed choice between given alternatives. A decision maker that is required to interpret the vague criteria of a statute is required to make a decision that renders the statute more specific. The decision maker is constrained by the text of the statute and by the requirement that the interpretation further the objectives of the statute and be consistent with the rest of the law as a whole. In administrative law, legislation is often deliberately worded vaguely, the intention being that vaguely worded standards will be made more concrete by the decisions of specialized administrative actors, who are best placed to develop the relevant policies. These interpretive decisions will sometimes be of a nature that different decisions could reasonably have been made – decisions equally consistent with the guidance and constraints provided by existing law (at para. 48, emphasis added).

It follows that “there will often be no uniquely right answer to a question: only determinations, chosen from among equally acceptable alternatives, which could conceivably have been made differently. Where these determinations are reasonable, courts are not permitted to intervene” (at para. 50).

This is a key point, which (I suspect) most seasoned administrative lawyers would accept: the courts are not limited to defining the outer range of vague statutory language; they are entitled to police what an administrative agency does within the range, to ensure it is “consistent with the rest of the law as a whole” which, at the risk of putting words in Miller JA’s mouth, includes the requirements of rationality and proportionality in appropriate cases.

Unfortunately, dealing with ambiguity and vagueness is not quite as simple as distinguishing “law” and “policy”, as Professor Alexander suggests.

This content has been updated on November 6, 2018 at 17:51.

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