Tuesday, May 11, 2010

Elena Kagan, Chevon Deference, and Independent Agencies

For a well-respected law professor and former Harvard Law School dean, Supreme Court nominee Elena Kagan has not produced a large body of scholarly work. But, after leaving her high-ranking positions in the Clinton Administration, she did produce a "large" law review article, the well-received Presidential Administration, published by the Harvard Law Review in 2001.

In that article, Kagan addresses the Supreme Court's famous Chevron case, which has to do with how much deference the courts should accord decisions of administrative agencies. She advocates a Chevron doctrine that "would begin by distinguishing between actions taken by executive branch agencies and by those taken by independent commissions." After elaborating factors that give independent agencies – such as the FCC – greater freedom from presidential direction and control than executive branch agencies, Kagan concludes that a Chevron doctrine "attuned to the role of the President would respond to this disparity by giving greater deference to the executive than to independent agencies." In 2005, a law review commentator observed that Kagan's view "is best read as applying Chevron deference only to executive agencies and some lower level of deference to independent ones."

This view, of course, should be of interest to those who are concerned with the actions of the FCC. It comports with my long-held view as well, which I set forth in my law review article, Defining Deference Down: Independent Agencies and Chevron Deference, published by the Administrative Law Review in 2006. In my article, I discuss Kagan's views on Chevron deference and independent agencies.

My article concludes:

"But at least with respect to the independent agencies, which are not politically accountable to the people in the same measure as the President and Congress, I suggest that a reading of Chevron that accords less deference to independent agencies’ decisions than to those of executive branch agencies would be more consistent with our constitutional system and its values."

On this point at least – a not unimportant point for all administrative lawyers and anyone interested in judicial review of the decisions of independent agencies like the FCC – Elena Kagan and I are on the same page.