Provisional Precedent: Protecting Flexibility in Administrative Policymaking (original) (raw)

2002, SSRN Electronic Journal

the rule of strict stare decisis, when a court construes a statute before an agency does, the judicial interpretation becomes binding precedent, even when Congress has delegated primary interpretive authority to the agency. In this Article, Kenneth Bamberger argues that the Supreme Court's adherence to this strict rule of precedent for the interpretations of administrative statutes undermines the separation-ofpowers justifications for agency administration and jeopardizes effective policymaking. He illustrates how the Supreme Court's decision in United States v. Mead, which limits the types of agency constructions that deserve judicial deference, dramatically increases the opportunities for courts to interpret statutes on their own. In response to the constitutional and normative disconnects caused by judges' enhanced ability to commandeer agency discretion, Bamberger proposes a model of provisional precedent as an alternative to strict stare decisis. This approach, based on the federalism model that governs federal court adjudication of state law issues, gives stare decisis effect to reasonable judicial constructions of regulatory statutes only until governing agencies make binding interpretations of their own. 1272 Imaged with the Permission of N.Y.U. Law Review PROVISIONAL PRECEDENT tion itself. Under this "incorporation" approach, 4 courts' interpretations become "part of the warp and woof of the legislation," 5 and in certain respects "as much a part of the statute as the text itself." ' 6 The statute "now says what the court has prescribed" 7 until Congress amends it. The deference doctrine adopted by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 8 operates according to different principles: ambiguous terms in regulatory statutes can bear multiple meanings; the choice between them is appropriately guided by policy concerns; and those policy choices belong to the political branches, notably to executive agencies, rather than to the judiciary. 9 Chevron provided a separation-of-powers grounding for the administrative state. Because Congress, the branch of government vested by the Constitution-with the power to make laws, 10 delegates primary interpretive authority to agencies when it leaves ambiguity in regulatory statutes, agency policymaking has a protected place within our constitutional scheme. When Chevron applies, courts are prohibited from substituting their own statutory constructions for an agency's reasonable interpretation." Agencies, not courts, get to interpret statutory ambiguity "first and foremost."' 2 Despite Chevron's profound departure from the general principle that courts are the primary interpreters of the law,' 3 the Supreme 4 See Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43, 44 (1993) ("The 'incorporation' conception posits that judicial constructions of enacted law enter into and become part of the instrument being construed."). 5 Francis v. S. Pac. Co., 333 U.S. 445, 450 (1948). 6 As the Court explained in Douglass v. County of Pike: After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment.