Both the Chevron doctrine and West Virginia v. EPA are based on ideas about the delegation of interpretive authority from Congress to administrative agencies. Chevron introduced the idea of ”implicit” delegations, and the doctrine spawned by it eventually held that any ambiguity in an agency statute is an implicit delegation. West Virginia is effectively an unacknowledged carveout. Without the majority’s mentioning Chevron, the case posits that when a “major question” is involved, a delegation must take the form of a clear statement; presumably, only express delegations or something close to this will count.
Both positions are extreme. The idea that any ambiguity is a delegation transfers too much power to the administrative state. The view that only express delegations will do for major questions concentrates too much power in reviewing courts.
The better position, as suggested in my recent book, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State (Harvard University Press 2022), is courts that should condition any strong form of deference to agency interpretations on a finding that Congress has actually delegated authority to the agency to resolve the issue. This means more than finding ambiguity; Courts must carefully interpret the statute and conclude that Congress left a gap for the agency to fill.
But it does not mean the delegation must be express; the delegation can be implicit but actual. For example, when Congress delegated authority to the EPA to promulgate emissions standards for new stationary sources (by the agency’s determining the “best system of emissions reduction”), this was an implicit but actual delegation to the agency to interpret the meaning of “best system” for that purpose (Section 111(B)(1)(B) of the Clean Air Act).
There are multiple reinforcing reasons for requiring courts to find an actual delegation before deferring in a strong sense to an agency’s interpretations. This was the universal assumption before Chevron. See, eg, Social Security Bd. v. Nierotko, 327 US 358, 369 (1946) (“An agency may not finally decide the limits of its statutory power. That is a judicial function.”). It is required by the Administrative Procedure Act. See 5 USC § 706(2)(C) (authorizing courts to set aside agency action “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right”). It is, as I argue in chapter 3 of The Chevron Doctrinemost likely what Justice Stevens had in mind in Chevron when he concluded that Congress left a gap in the Clean Air Act about the meaning of “stationary source” and implicitly delegated authority to the EPA to fill that gap.
Importantly, judicial judgment about the existence of an actual delegation is critical to preserving the separation-of-powers principle, reaffirmed in West Virginiathat “[a]gencies have only those powers given to them by Congress” 142 S.Ct. at 2609.
Tasking courts with determining, as a matter of independent judgment, that there has been an actual delegation to the agency requires courts to do something as to which they have a comparative advantage: statutory interpretation. There is no simple test for identifying the limits of agency authority, no escape from a court’s examining all relevant aspects of the statutory language, structure, purpose, and the evolution of the statute over time.
Sweeping presumptions, such as any ambiguity = delegation or any major question = no delegationwill only disserve the underlying separation-of-powers principle, which is that Congress has exclusive authority to decide the scope of agency authority.
This does not mean that courts must proceed in a purely ad hoc or unguided fashion. As I discuss in the new book (chapter 11), it is possible to identify a number of rule-like principles here. Express delegations, when they exist, should be enforced according to their terms. Issues as to which some other decisional authority should not qualify as a delegation to the agency. Agencies have no delegated authority to override incontrovertible statutory limits, as when the EPA sought to interpret “250 tons” of air pollutant to mean “100,000 tons.” See Utility Air Regulatory Group v. EPA573 US 302, 325 (2014).
There are also situations that should qualify as “red flags,” requiring conditions to engage in a more searching examination of the scope of agency authority. One is when an agency adopts an interpretation that deviates from the settled understanding of the scope of its authority, as when the FDA decided that it had authority to regulate tobacco products after consistently disclaiming such power. FDA v. Brown & Williamson Tobacco Corp., 529 US 120 (2000). Another is when an agency adopts an interpretation that sharply expands or contracts the scope of its authority, as when the FCC decided that its authority to “modify” tariff filing requirements permitted it to deregulate much of the long-distance telephone industry. MCI v. AT&T512 US 218 (1994).
These sorts of red flags should not be regarded as rule-like constraints on agency authority, but they should alert courts to the need to engage in closer scrutiny of the statute in order to determine if the agency is either overstepping the bounds of its delegated authority or abdicating a type of function it is expected to perform.
The appropriate use of these red flags brings us back to West Virginia and the major questions doctrine. Decisions such as Brown & Williamson, MCI v. AT&Tand Utility Air were precedents heavily relied upon by Chief Justice Roberts in support of recognizing a major questions doctrine. The crucial difference, however, is that in these previous decisions, observations about the “economic and political significance” of the agency interpretation, or its potential for “radical or fundamental change,” or its “unprecedented” nature were offered in the course of The Court’s exercise of traditional statutory interpretation to determine the scope of the agency’s authority.
The provenance of the major questions idea gives rise to hope that West Virginia can be assimilated to the complex of norms about statutory interpretation—which is to say, to the world of conventional interpretation, as displayed in the precedents upon which West Virginia draws.
To be more specific, it would be desirable if the Court, in some future encounter with a question about the scope of agency authority, did not proceed as if West Virginia Established a hard-edged clear statement rule, requiring first an abstract determination (based on multiple factors of uncertain weight) whether the question is “major” and, if so, then demanding a clear statement from Congress authorizing the agency to address the issue.
It would be better to treat West Virginia as requiring, in every case, that the agency possesses actual delegated authority over a question before the court will defer to its interpretation. And the circumstances that led the Supreme Court to deem the question in West Virginia “major” should be cited as ones that alert the reviewing court to the need for a particularly careful examination of the agency’s claim of authority.
We live in a perilous world in which the rule of law is vulnerable to being crushed in a universal game of political “hardball.” The Chevron doctrine was a notable attempt to distinguish the realm of “law” from that of “policy,” and to define the role of the courts as being the enforcers of law, with agencies given primacy in the realm of policy.
Over time, as I set forth at length in my book, the Chevron doctrine proved to have a number of shortcomings. But the Court, in its efforts to define something better, needs to tread cautiously, not it make the ideal of the rule of law, and the courts’ role in enforcing it, more difficult to attain than ever before.