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Chevron Deference and Agency Jurisdiction:

Should agencies receive Chevron deference for statutory interpretations that implicate the scope of their own jurisdiction? This question divided Justices Scalia and Brennan in Mississippi Power & Light Co. v. Mississippi (1988), and has not been conclusively resolved since. In The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, Nathan Sales and I address this question, and come down conclusively on the side of (drum roll please) . . . Justice Brennan. A draft is now up on SSRN and I've posted the abstract below:

Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of jurisdictional questions that may arise in statutory interpretation. The article then surveys how the Supreme Court and lower federal courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court's Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence- and scope-of-power cases, but courts should continue to show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. We support our proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counterarguments to our proposal - particularly the potential difficulty in distinguishing between jurisdictional and non-jurisdictional questions - this article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.

Related Posts (on one page):

  1. Chevron Deference and Preemption:
  2. Chevron Deference and Agency Jurisdiction:
Bruce:
Haven't read the article, but I'm curious what your response is to the point that just about any interpretation of the organic statute relates to the scope of the agency's jurisdiction; i.e., if X is prohibited by the statute, then the agency has the power to prohibit it by regulation, and if not, not. Wouldn't that get rid of Chevron deference across the board?
8.21.2008 11:17pm
OrinKerr:
I agree. Chevron deference exists because Congress has delegated a zone of discretion to agencies; that zone of discretion can only exist if courts give deference to what agencies do. The deferential standard of review and the agency power must coexist. No such rationale exists to explain Chevron deference to the scope of the agency's zone of delegated power; if Congress has not given the job to an agency, the rationale for deference does not exist.
8.21.2008 11:59pm
nick:
For the ancient franchise courts, the King's courts reviewed jurisdictional disputes, but not substantive issues. The King's courts were needed to referee jurisdictional disputes (which were considered to be trespasses on other jurisdictions), and sometimes intervened to protect the procedural rights of defendants, but apparently did not consider themselves competent to opine on the substantive issues, which varied from locality to locality and from one kind of court to another (e.g. merchant's courts had a radically different substantive law from manorial courts).

There is similarly a good argument to be made that federal courts act as a necessary referee for jurisdictional disputes, which may involve one agency "trespassing" on the jurisdiction of another or on the jurisdiction of a State. Federal courts should also vigorously protect the procedural rights of defendants. Furthermore, federal courts are more likely to be expert on jurisdiction and other procedural issues than on the substantive issues for which the agency is the expert. As a result they should review jurisdictional issues, and perhaps procedural issues generally, de novo while giving Chevron deference on substantive issues.
8.22.2008 12:30am
cjwynes (mail):
Why not treat it differently when they're disclaiming jurisdiction? Orin's rationale seems to be very reasonable when addressing agency assertions of jurisdiction, as they can't have what Congress didn't give them. But when they're disclaiming power, there's no conflict. The executive branch is generally free to abstain from exercising power.
8.22.2008 2:11am
Simon P:
This looks like an example of the kind of article that is all-too-uncommon in contemporary legal academia: an article that takes on an important, unresolved, and difficult issue and comes up with an answer actually based on existing law.

Good work, at least for fighting the good fight. I look forward to giving it a read.
8.22.2008 8:52am
MJG:
Good work, and I agree. I think this is an important question, and particularly so in the related area of when agencies determine whether their enabling statutes preempt state law. See e.g., Watters v Wachovia Bank (6th Circuit and Supreme Court opinions).
8.22.2008 11:48am
CJColucci:
Why not treat it differently when they're disclaiming jurisdiction? Orin's rationale seems to be very reasonable when addressing agency assertions of jurisdiction, as they can't have what Congress didn't give them. But when they're disclaiming power, there's no conflict. The executive branch is generally free to abstain from exercising power.

The executive branch is certainly free to abstain from exercising power it has been given, but since Congress (and possibly even the public) thought it a good idea to give that power to the agency in the first place, there is a political price to be paid for declining to take on the job the lawmakers authorized the agency to do. If the agency can claim, with some degree of plausibility, that it lacks the authority to do the job people seemed to want it to do, there is a convenient place for the reluctant agency to hide without paying as high a price.
8.22.2008 1:05pm
guest (mail):
Haven't read your article yet, but you might be interested in Tafas v. Dudas, currently at the Federal Circuit. The Patent Office's authority to issue certain rules is being challenged (both as being outside the scope of the Office's authority and as being inconsistent with the Patent Act), and one of the Office's arguments is that it is entitled to Chevron deference in its determination of the scope if its authority.
8.22.2008 1:27pm