Wallach on Chevron Deference and “Muddling Through”

Philip A. Wallach (Brookings Institute) has successfully defended a dissertation entitled Contested Constraints: Regulatory Statutes in America’s Modern Administrative State (Princeton, Sept. 2012).

From the abstract:

Through in-depth analysis of several original case studies (the history of the Glass-Steagall Act’s interpretation; the Food and Drug Administration’s attempt to regulate tobacco during the 1990s; the application of the Clean Air Act to greenhouse gasses) and an original large-n dataset (rulemaking under the Clean Air Act in the 1990s and 2000s), the dissertation traces the processes through which textual constraints become binding. A major theme that emerges is that judges take into account the policy-specific context in which novel interpretations occur, and especially the relative institutional capabilities of Congress and bureaucrats. Where Congress seems incapable of providing guidance, judges are more likely to accept strained interpretations of statutory text.

The dissertation’s most important contribution is to raise neglected empirical questions about the effects of law, answers to which would be of direct use to policymakers.

From the dissertation:

In Chevron Step One, judges determine the boundaries of the statute’s ambiguity and ensure that the action before them falls within that permissible range; in Chevron Step Two, judges ensure that the decision-making process used to reach the construction was reasonable (not arbitrary or capricious).

I argue that it is impossible to clearly demarcate “permissible interpretation” and “reasonable policy,” with the law controlling in the former case but not in the latter. Following Stephenson and Vermeule (2009), I assert that these distinctions collapse upon close examination, such that the primary question facing courts is always whether an agency’s actions can be seen as consistent with its statutory mandate. As a result, . . . law continues to guide actions under a statute even when it does not require any particular outcome.

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[T]ext should be controlling if it is clear and practically unproblematic. If it is not, though, government actors attempting to resolve problems within a statutory scheme will eschew any hard and fast decision rules, instead favoring a context-sensitive assessment of institutional capabilities to guide their choices. In other words, bureaucrats and judges consider it a first-best option to act as the legislature’s faithful agents in effecting well-designed, coherent, and workable statutory requirements. At the same time, practical implementation problems, statutory lacunae, and ambiguous language confront them with many situations in which conceiving of themselves as mere rule-followers will either lead to results they consider unacceptable or leave them without meaningful guidance. At this point, they will muddle through as best they can with the information available to them, including about policy-specific institutional capacities. This dissertation mostly presents a justification for this account.

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The approach described here, with its prominent place for muddling through, has one clear disadvantage relative to the [traditional Chevron deference] model of judging . . . [that] couples strong textualism with thoroughgoing deference to the executive in the presence of statutory ambiguity: saying that final decision-making authority will change depending on the circumstances makes it harder for government officials and regulated parties alike to predict how and when policy will ultimately be settled in an area.

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