Professor Timothy Armstrong’s Article Discussed in SCOTUS Order
Professor Timothy Armstrong’s article “Chevron Deference and Agency Self-Interest” (published in the Cornell Journal of Law & Public Policy) was cited on October 16, 2017 in the Scenic America, Inc. v. Dep’t of Transp. statement of Justice Neil Gorsuch, joined by Chief Justice John Roberts and Justice Samuel Alito, respecting the denial of certiorari.
Here’s Professor Armstrong’s take on the development:
Although I no longer specialize in the area, I handled quite a few matters dealing with administrative law during my career in private practice. My clients in such cases had disagreements with federal government agencies over the terms of the statutes those agencies administered. As administrative-law specialists know, federal agencies enjoy a significant advantage in litigation over other parties where disputes arise over the meaning of an agency’s governing statute. Agencies usually win such disputes because, under the reasoning of Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), courts are obliged to defer to an agency’s interpretation of its own statute in many instances, on the grounds that Congress meant for the agency itself to fill in the gaps and resolve any ambiguities in the legislation as enacted.
My article, “Chevron Deference and Agency Self-Interest,” argued that sometimes more important policies superseded the rationale of the Chevron decision. The article argued, specifically, that the courts should not defer to agencies’ legal interpretations when those interpretations tended to affect the scope of the agency’s regulatory authority or the agency’s financial interests, because in those scenarios, reasonable observers might doubt whether the agency’s action rested upon a dispassionate and impartial assessment of what the law actually required. The Court rejected my position, insofar as agencies’ regulatory authority is concerned, a few years ago in City of Arlington v. FCC, 133 S. Ct. 1863 (2013).
Monday’s Order, however, indicates that at least some of the Justices remain concerned about an agency’s reliance on the Chevron doctrine where the agency's legal interpretation redounds to its financial advantage. It is interesting that Justice Gorsuch drafted the order issued Monday, because his predecessor on the Court (the late Justice Antonin Scalia) wrote the majority opinion in City of Arlington and generally took a far more expansive view of the circumstances when Chevron deference was appropriate. For Justice Gorsuch to be signaling more discomfort with Chevron (as he also did during his years on the Court of Appeals) is a hint that the change in the composition of the Court in the few years since City of Arlington may become quite significant down the road if a new case raising the question of deference to agencies’ contractual interpretations should come before the Court.