Recommended Citation
William R. Andersen, Against Chevron - A Modest Proposal, 56 Admin. L. Rev. 957 (2004), https://digitalcommons.law.uw.edu/faculty-articles/1073
Publication Title
Administrative Law Review
Keywords
Chevron deference, agency action
Document Type
Article
Abstract
This Article proposes a short amendment to § 706 of the Administrative Procedure Act (APA), which is intended to effectively abolish the Chevron doctrine. The solution will not end all debate on these important issues. It will, however, put the decisions and discussions on a sounder basis, leading to improved decisions and more predictability. The proposal is based on three principles whose validity cannot seriously be questioned.
First, the Rule of Law requires that professionals attend seriously to doctrinal sets marked by bewildering inconsistency and its resulting unpredictability. Whatever components one includes in the concept of Rule of Law, surely these are basic. If confusions persist despite extensive critical analysis, we have an obligation to look harder for other solutions.
Second, while problems with this subtlety and complexity cannot be solved with specific rules-general standards are needed-there has not been sufficient recognition of the value of functional standards, as distinguished from formal standards. We need standards that direct attention to identifiable and findable real world functions that can channel argument and thought into empirically resolvable discussion. Only in this way can we hope to achieve the kind of consistency and predictability the Rule of Law demands.
Third, a legislative solution has extraordinary advantages over continued refinement in judicial opinions. This is not a new message to students of administrative law, where it has long been recognized that formulating new policies in general legislative form has marked advantages over case-bycase adjudication. Rulemaking, we regularly teach, provides broader factfinding capacity unhindered by rules of evidence and other limits. It provides more open access and wider input from those affected. It allows more general and comprehensive solutions as distinguished from piecemeal fixes or solutions affected by and limited to the peculiar facts of a given case. Rulemaking's explicit focus on policy, rather than logic and precedent, its prospective operation, and its relative ease of comprehensive change when a rule needs adjustment, all give rulemaking significant advantages over adjudication as a tool for changing policy. The legislative solution proposed here intends to capture exactly those kinds of benefits.