Why Independent Agencies Deserve Chevron Deference
In Chevron U.S.A. v. Natural Resources Defense Council, Inc, the Supreme Court updated the debate about the allocation of statutory interpretation powers between the administration and the courts. This case added new arguments and rationales for sustaining judicial deference when courts review agencies’ statutory interpretations. Chevron, however, did not distinguish between the scope of judicial deference to be accorded executive and independent agencies. Post-Chevron cases have also not differentiated between these two kinds of agencies. As Randolph May points out in his article Defining Deference Down: Independent Agencies and Chevron Deference (2006), scholars have paid surprisingly little attention to how independent agencies fit with respect to the Chevron framework. May concludes that independent agencies deserve less judicial deference under Chevron rationales because the secure tenure of the heads of independent agencies diminishes their political accountability.
In this paper I take up May’s suggestion that there is more to be said about theories of judicial deference, the Chevron framework and independent agencies. I begin by clarifying the debates surrounding Chevron. I argue that post-Chevron cases have resolved Chevron’s initial ambiguity in favor of democratic rationales rather than expertise and conclude that the Supreme Court’s jurisprudence after Chevron fits well with pluralist and deliberative understandings of democracy. These theories emphasize procedural safeguards rather than electoral mechanisms in order to ensure citizen participation in the public sphere.
I then subject independent agencies to the scrutiny of these democratic procedural safeguards, exploring the mechanisms that allow citizens to participate in framing and monitoring independent agency statutory interpretations, notably transparency requirements and administrative processes. I also introduce the concept of dialogue among institutions to describe the institutional advantages that independent agencies have over executive agencies from the perspective of theories of deliberative democracy. Finally, I briefly suggest how the independent agency model can guarantee the use of expertise in framing statutory interpretations. I conclude that, under democratic theories that prioritize procedural safeguards, the claims that call for less judicial deference to independent agencies are not well founded.