Defining Deference Down, Again: Independent Agencies, Chevron, Fox, Scalia, and Kagan

In 2006, I published an article in the Administrative Law Review entitled "Defining Deference Down: Independent Agencies and Chevron Deference." In that article I posed the question: “Should the statutory interpretations of independent regulatory agencies, such as the FCC’s determination at issue in Brand X, be accorded a lesser degree of judicial deference than those accorded to executive branch agencies?” In response, I suggested 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.”

Whether the decisions of independent agencies such as the FCC should receive less deference on judicial review than those of executive branch agencies is not only a matter of constitutional concern, but of significant practical import to those who are regulated by independent agencies or who otherwise are affected by their decisions.

In a follow-on article just published in the latest issue of the Administrative Law Review, I discuss the Supreme Court's decision last Term in FCC v. Fox Television Stations, Inc. The new article is entitled, "Defining Deference Down, Again: Independent Agencies, Chevron Deference, and Fox." In the Fox case, the Supreme Court affirmed a change of FCC policy to the effect that even isolated, non-repetitive incidents of indecent speech could be sanctioned. While the Court in Fox did not address Chevron deference directly, there were definitely Chevron-like echoes as the Justices debated the relevance of the FCC’s political accountability (or lack thereof) to determine whether the proper standard of review should be more or less searching.

With the original Defining Deference Down article, based on what I see as the principal political accountability rationale underpinning Chevron, my project was to begin a more robust dialogue concerning whether a less deferential judicial review standard of independent agency actions would be more consistent with core separation-of-powers values. While I expect Fox will be seen foremost through the lens of a more conventional administrative law “change of agency policy” case, I have hopes it will also be an impetus for the ongoing dialogue that I aim to further with this new article, "Defining Deference Down, Again."

An interesting aspect discussed in my new Administrative Law Review article relates to Justice Scalia's (somewhat misleading) citation of Solicitor General Elena Kagan's Presidential Administration law review article in support of his view that decisions of independent agencies should not be subject to more searching judicial scrutiny than those of executive agencies. In fact, in Presidential Administration, Kagan explicitly advocates that independent agencies should receive less Chevron deference than executive agencies because they are less politically accountable: "A Chevron-type doctrine attuned to the role of the President would respond to this disparity by giving greater deference to executive than to independent agencies."

In other words, put in terms of the Fox decision's juducial review debate, Elena Kagan has contended that decisions of independent agencies like the FCC should be subject to more searching judicial scrutiny than executive branch agency decisions.