By Daniele De Oliveira Nunes*
It has been estimated that at least a third of Justice Brett Kavanaugh’s opinions as a judge in the D.C. circuit involved Administrative Law.[i]His nomination to the Supreme Court of the United States, besides raising the disturbing allegations of sexual misconduct, stirred up a debate about his view on one of the most important issues in this field: statutory interpretation. While on the D.C. Circuit, Justice Kavanaugh[ii]argued that the major questions doctrine sets aside the standard established by the Supreme Court in Chevron v. Natural Resources Defense Council[iii], addressing concerns about democracy. However, these concerns appear to be irrelevant when it comes to agencies with a good level of governance.
The standard established in Chevroncreates two steps for the analysis of an agency’s interpretation of a statute. The first step should focus on “whether Congress has directly spoken to the precise question at issue”, in a way that its intention is clear.[iv]If answered affirmatively, the unambiguous meaning intended by Congress should be upheld. If not, the Court should move to step two, in which it should decidewhether the agency’s interpretation is based on a permissible construction of the statute.[v]In later opinions, the Supreme Court added a preliminary step to this standard – stepzero. Step zero requires the Court to determine if Chevronis the applicable framework by investigating whether “Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”[vi]
According to the major question doctrine, however, Chevron’s standard of deference to agencies’ statutory interpretation should not be applicable when the issue is one of “deep economic or political significance,”[vii]or when it could represent “an enormous and transformative expansion of the agencies regulatory authority.”[viii]The argument has been raised a few times by the Supreme Court, such as in MCI Telecomms. Corp. v. AT&T Co[ix]and FDA v. Brown & Williamson Tobacco Corp.[x]The reasoning under the major question doctrine, in sum, is that separation of powers, a fundamental pillar of democracy, could be in jeopardy if agencies were allowed to interpret statutes to decide major questions, instead of Congress.[xi]
This doctrine raises some critiques. In what appears to be the first article that identified the doctrine under this name, Cass R. Sustain argues that “major questions are not easily distinguished from less major ones, and the considerations that underlie Chevron apply with more, not less, force when major questions are involved.”[xii]Even admitting there could be a principle to limit “agency discretion when constitutionally sensitive interests are at stake,”[xiii]Cass R. Sustain concludes it “should not be converted into a general presumption in favor of limiting agency authority.”[xiv]
It is not hard to understand the concern, since agencies are non-majoritarian institutions with relative independence, which cannot act without delegation of powers from Congress.[xv]Nonetheless, as a general rule, democracy is not threatened when agencies’ statutory interpretation involves major questions simply because of the importance of these questions.
Governance plays an essential role here. Over the last decades, the Organization for Economic Co-operation and Development (OECD) has been reinforcing the importance of improving agencies governance. In its efforts to guide countries to strengthen their regulatory agencies governance, OECD established seven basic principles: (i) role clarity; (ii) prevention of undue influence and trust maintenance; (iii) decision-making and governing body structure for independent regulators; (iv) accountability and transparency; (v) engagement; (vi) funding; (vii) performance evaluation[xvi].
Overall, guidance provided by these general principles allows agencies to achieve a greater level of legitimacy from both a substantive and a procedural perspective,[xvii]therefore answering to the concerns underlying the major questions doctrine. Output legitimacy (or substantive legitimacy) is related to the outcomes of agencies’ actions. Because of agencies’ expertise and political insulation, in theory they are able to achieve better outcomes in the particular areas in which they develop their activities.[xviii]Procedural legitimacy, by its turn, is related to agencies’ accountability, which imposes (i) their creation and their goals to be the result of a democratic decision, (ii) their decisions to be motivated and reached within a predefined procedure, which should be transparent and allow for widespread stakeholder participation, and (iii) their actions to be adequately monitored.[xix]
Under these arguments, agencies with a greater level of governance might actually achieve better[xx]and more democratic decisions involving major questions than Congress is able to do. It has been said that agencies might contribute to the continuity and the consistency of public policies precisely because they are not subject to electoral scrutiny[xxi]. Legislators might even prefer some decisions on major questions to be made by agencies, instead of committing to a view that may expose them to criticism.[xxii]
This does not mean, however, that important decisions on major issues will be reached while agencies turn their backs to the society. In fact, their structure and specialization allow a richer, more plural and focused debate than in Congress, the traditional branch of democratic discussion.[xxiii]
Thus, a general doctrine that excludes statutory interpretations involving major questions from the standard of deference stated in Chevron, without any consideration of the level of governance of the agency involved, does not appear adequate. The implementation of strategies of governance contribute to mitigate the alleged risk to democracy some believe has been created by the doctrine of deference and, therefore, should impose, at least, an analysis on the agency’s governance to be done before appealing to the major questions doctrine as an argument to set aside Chevron’s standard.
Daniele de Oliveira Nunes is a Contributing Editor on MJEAL. She can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i]Kent Barnettet. al., “Judge Kavanaugh, Chevron Deference, and the Supreme Court”. The Regulatory Review(Oct. 28, 2018), https://www.theregreview.org/2018/09/03/barnett-boyd-walker-kavanaugh-chevron-deference-supreme-court/.
[ii]United States Telecomms. Ass’n v. FCC, 855 F.3d 381 (D.C. Cir. 2017) (Kavanaugh, J., dissenting).
[iii]Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)
[iv]Id. at 842.
[v]Id. at 843.
[vi]United States v. Mead Corp., 533 U.S. 218, 227 (2001).
[vii]Kevin O. Leske, Major Questions About the “Major Questions” Doctrine, 5 Mich. J. Envtl. Admin. L.479, 480 (2016).
[ix]MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994).
[x]FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
[xi]SeeUnited States Telecomms. Ass’n v. FCC, 855 F.3d 381 (D.C. Cir. 2017) (Kavanaugh, J., dissenting)(stating the major rules doctrine helps preserve the separation of powers and prevent undue expansions of executive authority).
[xii]Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev.187, 194 (2006).
[xv]Cf. PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75 (D.C. Cir. 2018) (Kavanaugh, J., dissenting) (asserting that independent agencies constitute a fourth branch of government, holding great amount of power over the economic and social life without Presidential supervision and direction,threatening the separation of powers).
[xvi]OECD, The Governance of Regulators, OECD Best Practice Principles for Regulatory Policy (OECD Publishing, 2014).
[xvii]Cf.Martino Maggetti, Legitimacy and Accountability of Independent Regulatory Agencies: A Critical Review, 2 Living Reviews of Democracy1,9 (2010); Mark Thatcher & Alec S. Sweet, Theory and Practice of Delegation to Non-Majoritarian Institutions, inThe Politics of Delegation1, 19 (Frank Cass ed., 2003).
[xviii]SeeGiandomenico Majone, The Regulatory State and its Legitimacy Problems, 56 Pol. Sci. Series1, 3 (1998).
[xix]SeeGiandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of Standards, 4 Eur. L. J.5, 20 (1998).
[xx]In the sense of decisions that better meet the general policy objectives set by legislators.
[xxi]SeeGiandomenico Majone, The Regulatory State and its Legitimacy Problems, 56 Pol. Sci. Series1, 8 (1998).
[xxiii]For instance, conservative legislators might avoid discussions on environmental concerns, a topic which supposedly would not please their voters. This is not a problem in agencies, which officials are not elected.