Fencing Chevron’s Domain: Fox v. Clinton

Those who think the D.C. Circuit’s Chevron jurisprudence is a rubber stamp for agency action should read Tuesday’s Fox v. Clinton decision [pdf].  Judge Edwards’s opinion identifies seven overlapping reasons why the court could not defer to the State Department’s refusal to issue a Certificate of Loss of Nationality to an emigrant seeking to renounce his American citizenship: 

  • “The Department offered little more than uncited, conclusory assertions of law in a short, informal document”;
  • “The agency is owed no deference” to its interpretation of “foreign law”;
  • The opinion letter’s conclusion “appears to be based on”
    • “an unpersuasive view of the requirements of,” the U.S. law in question,
    • “faulty assumptions about the requirements of Israeli law,” and
    • “possible misunderstandings of the material facts”;
  • The agency mistakenly believed the U.S. law to be unambiguous; and
  • The opinion letter was not based on “reasoned decisionmaking” or “agency precedent.”

A cautious, one-paragraph concurrence by Judge Williams relies on the State Department’s lack of reasoning rather than its lack of formality, but Judge Edwards’s opinion for the court indicates more than one reason to withhold deference in this case.

Of course, courts do defer to less-than-formal administrative decisions on occasion, and Judge Edwards distinguished several such cases, including one he recently authored.  Where an agency’s informal decision is “exhaustive,” pursuant to “express delegation from Congress,” responsive to a judicial remand order, in line with “longstanding agency policy,” and (consciously) fills gaps in an ambiguous statutory scheme, it may be worthy of deference.  None of those factors were present in this case.

Rather than vacating the State Department’s decision, the court merely remanded, in light of the Department’s expertise in the field of immigration and expatriation.  But Judge Edwards called the Department’s position “difficult to fathom,” and the court’s statutory analysis leaves little room for doubt that the applicant, who “obtain[ed] naturalization in a foreign state upon his own application,” is entitled to the certificate he seeks.

Fox v. Clinton, No. 11-5010 (June 12, 2012) (Edwards, S.J., joined by Garland, J., with concurrence by Williams, S.J.)

See also:


  • Michael Greves, The Twilight of Administrative Law?, Library of Law & Liberty (April 10, 2012) (“My principal worry—and it’s a worry, not an empirical observation that could withstand Ginsburgian rigor—is that the D.C. Circuit’s AdLaw may have become too disconnected from rule-of-law values to be of much service in an environment for which it wasn’t intended or designed, and which it could not anticipate.”)

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