17 Admin. L. News 1 (1991-1992)

handle is hein.journals/admreln17 and id is 1 raw text is: ADMINISTRATIVE
LAW NEWS Fall 1991
 LAW  NV V ol. 17, No. 1

The Supreme Court's Rold in
Shaping Administrative Law
by Timothy B. Dyk*

When Ernie Gellhorn asked me to make this
presentation, he chose the title. The more I thought
about it, the more convinced I became that the sub-
ject ought to be the role of the Supreme Court in not
shaping administrative law. For surely one of the
most important developments in administrative law
in the last several decades has been the Supreme
Court's Chevron decision, under which the Supreme
Court will defer to the agency's interpretation of its
own governing statute when the statute is ambigu-
ous and the agency's construction is reasonable. This
reflects a conscious refusal on the part of the Su-
preme Court to play its traditional role in interpret-
ing federal statutes. It represents, as Professor
Sunstein has noted, a kind of counter-Marbury.
Then-Judge Starr described Chevron as a case
which all appellate judges these days bear firmly in
mind in reading statutes. And they do. Chevron has
had an enormous impact upon challenges to agen-
cies: two terms after Chevron, Judge Stanf noted that
in the Supreme Court Chevron has been employed
with regularity, and in all cases save one the agency
won the case. While the agency record in the past
two terms is more mixed, the centrality of Chevron
to review of administrative agencies continues.
Chevron receives not only the attention of law pro-
fessors and the courts. Congress itself has held hear-
ings to consider whether the Chevron interpretive
principle should be altered, and even the public pays
attention to Chevron. On July 18, 1 was present when
Walter Dellinger con-
demned Chevron before a                   In TT
cheering throng of several
Fall Meeting Highlights
*Partner, Jones, Day, Reavis &  ACUS Agenda Demonst
Pogue. This article is an abridged  Breadth of Administra
version of a presentation made  Section Calendar .......
at the 1991 ABA Annual Meet-  Supreme Court News..
ing in Atlanta. The author very  1991-92 Section Directo
much appreciates the assistance  News from the States
of Peter Wang, a summer asso-  Nh
ciate at Jones, Day, Reavis &  Recent Articles of Interei
Pogue, who contributed much of  Energy & Environment
the research for this piece.

hundred. That might have been due to the use of
Chevron in Rust v. Sulltva, since these assembled
were about to lobby for a legislative change to the
law upheld in that case, but I like to think that the
opposition was more broadly based.
I place myself firmly in the camp of those who
believe that Chevron was wrong, and who view it as
an abdication of the function of judicial review con-
ferred by the Constitution and by the Administrative
Procedure Act. As one who practices both before the
Supreme Court and in the area of administrative law,
I have special concerns about the wisdom of repos-
ing trust in administrative agencies with respect to
issues of statutory construction. This mistrust arises
from several sources.
(1) The political agenda of the Executive Branch is
largely controlling at administrative agencies. This
influence stems in part from the ability of the incum-
bent administration to appoint agency chairmen and
their role in setting the agency agenda, appointing
staff, and formulating policy. The Executive Branch's
enormous influence also stems in part from the tend-
ency of many agency members to resign whenever
there is a change in administrations, particularly a
change from one political party to another. Their av-
erage tenure in 1977 was only 4.3 years. Another
reason stems from the ambition of many agency
members for higher office. This desire extends not
only to the agency members who belong to the Pres-
ident's party but to those of the other party as well.
A study by the Senate
; Issue                Committee on Govern-
ment Operations in 1977
.3                    observed that each major
es the                 party fills minority vacan-
e Law ...........4     cies with Friendly In-
.........        5    dian appointments -
.   ........    6    persons who are very
.........Pull-out     proswoaevr
......         .9     sympathetic to the admin-
.............. .......10  istration  despite  party  af-
nference ............ 16  filiation and who identify
(continued on page 13)

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