Precedent and United States Administrative Law

In the common law order, precedent is not only a matter of applying law but also of making law. The crucial function of stare decisis is to relieve the appearance of judicial arbitrariness. Precedent also applies in the domain of administrative law in the context of judicial control of administrative policy making. Federal courts treat administrative agencies as having precedent-setting powers comparable to their own, under what is referred to as the Chevron doctrine. This doctrine determines the scope of judicial control of the decisional process performed by an administrative agency, particularly when the court is called upon to enforce a limitation to the administrative discretion delegated by the agency’s governing statute.


INTRODUCTION
The doctrine of precedent serves an important role in common-law systems. By "common law systems", I mean judicial systems in which judges are not restricted to "finding" and "applying" law that is made by those who perform a legislative role. Judges in common-law systems also "make" law. The central private law doctrines of contract and tort in anglophone jurisdictions were evolved -made and remade -over centuries in common law style. So, too, were many of the central now codified doctrines in criminal law. merely a fig leaf to disguise the fact that every case is a "case of first impression", in which judges make law to justify an outcome, and "retroactively" apply the law to parties to the dispute. Judicial law-making is not saved from arbitrariness by the doctrine of precedent, in the Realists view, it is saved (if at all) by correctly reaching the best, all things considered result in the case. What makes that best result the best might include respect for settled expectations, but those expectations do not control.
PRECEDENT AND ADMINISTRATIVE LAW Now I will make some remarks on how the doctrine of precedent has shaped the administrative law of the United States. By "administrative law" I mean that body of law that governs the federal agencies and, in particular, the law of judicial review of agency actions. Congress, in its exercise of the legislative power, typically directs some agency of the federal government to regulate some activity. The federal agencies are creatures of Congress. Congress designs them, empowers them, funds them, and in various ways supervises them. Congress may do this only by legislation, a cumbersome process. It falls mainly to the judicial branch to assure the legality of agency action.
In judicial review of agency action, the doctrine of precedent has two roles. In one role, the Court must decide what weight to give to its own prior decisions with respect to particular agencies, which operate under a charter enacted by Congress. Once the Court has declared that a certain statutory passage has a certain specific meaning, it is very rare for the Court to later change its mind about what Congress meant. Of course, what Congress intended is the ultimate touchstone, and it is possible that a prior decision by the Court might have misread a statute. But normally the Court will stick by its prior (mis)interpretation until Congress overrules it, that is, corrects it by new legislation, passed in identical form by both Houses, and signed by the President (or passed by supermajorities in both Houses to override the President's veto). The Court presumes that Congress is aware of any potential misreading and, by not legislating a correction, has expressed an acquiescence in the Court's interpretation.
The other role of precedent in judicial review of agency action is defined in what is known as the Chevron doctrine. If Congress's intention in a statute can be fairly discerned as speaking directly to the precise issue in dispute, then that intention must control. But if the language of the statute does not disclose a precise intention, then the Court will examine the agency's interpretation, and defer to it if it is reasonable. Normally, questions of statutory interpretation come to the Court because a private party disputes an agency interpretation of its governing statute. Therefore, the agency will already have made a decision as to the statute's Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 10/05/2021 07:22:54 U M C S meaning, or made a determination -or "filled a gap" -within a presumed range of possibilities created by the statute. The Chevron doctrine, in effect, treats the agency's decision as if it were a prior interpretation by the Court itself. It is controlling unless there are strong reasons to overrule it. And, as in the case of the Court's own prior interpretations of statutory language, congressional acquiescence is counted in favor of letting the prior decision stand.
It seems unnecessary for the Court to treat an agency as though it were a prior court. If the agency makes law, then it is natural to regard the lawmaker's advice as to the meaning of that law as definitive -unless exceptional circumstances exist. This is, in fact, the Court's present posture regarding agency interpretations of their own regulations. This is known as the Auer or Seminole Rock doctrine. But a line of Supreme Court decisions affirms a "nondelegation" doctrine: Congress cannot delegate lawmaking power to the agencies. The constitution forbids it. Of course, agencies can be endowed with decisionmaking authority, where Congress by statute has articulated an "intelligible principle" to guide the agency in exercising that authority. Only once in the nation's history has the Court been unable to find such a principle, and the Court has long and repeatedly upheld delegations in such sweeping terms as "in the public interest, convenience, or necessity", or "unfair methods of competition". Agencies regulate but they do not make law, on this understanding.
But if an agency regulation is not received by a court as a law made by an exercise of the legislative power, how is it to be received? Under the Chevron doctrine, agency regulations, insofar as they represent interpretations of the statute under which the agency operates, is treated with much the same kind of deference as the Court treats its own prior decisions interpreting statutory language: to be followed, unless plainly mistaken or (perhaps) outmoded.
This understanding helps to illuminate a corollary of the Chevron doctrine, which was derived in a case styled National Cable v. Brand X Cable. A prior Supreme Court decision had upheld an agency's interpretation of a certain statutory term. In the presented case, the agency had acted in a way that represented a different interpretation of the same statutory language. In doing so, the agency seemed to be overruling the Court's prior decision. This is troublesome since the agency seems to arrogate to itself the power to overrule the Court itself! But, not to worry, the Court explained. The prior decision of the Court had failed to declare that the agency's prior reading was the proper reading, as opposed to a permissible reading. Where Congress has, in effect, delegated to an agency the power to determine the meaning of vague or ambiguous terms, it has also implicitly delegated the power to reinterpret those terms. So long as the reinterpretation is reasonable, it is to be treated as the new precedent -even if it is not any better a reading. When a common-law court overrules one its precedents, the overruling is the new precedent. In much the same way, an agency's reinterpretation (or, better, redetermination) Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 10/05/2021 07:22:54 U M C S