Agency Discretion and Chevron Deference

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Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Challenges to delegations of legislative power often raise concerns regarding an administrative agency’s discretion to interpret broad directives, ambiguities, or gaps in a statutory provision. An agency’s degree of discretion that may be constitutionally “acceptable” under the nondelegation doctrine appears to be fairly broad. In Whitman v. American Trucking Associations, the Supreme Court rejected a challenge to the U.S. Environmental Protection Agency’s (EPA’s) authority to set national air quality standards at a level “'requisite’ . . . to protect the public health.” 1 The Court held that the “scope of discretion” given to the EPA under the Clean Air Act “fit[s] comfortably” and is “well within the outer limits of our nondelegation precedents.” 2 In reviewing previous nondelegation cases, the Court reasoned that even in “sweeping regulatory schemes” that affect the entire economy, the Court has “never demanded . . . that statutes provide a ‘determinate criterion’ for saying ‘how much [of the regulated harm] is too much.’” 3

Congress has given considerable leeway to administrative agencies to interpret statutory ambiguities, which has been sustained by the Supreme Court under the Chevron doctrine. Under the Chevron doctrine, courts give special consideration or deference to administrative agencies to interpret statutory ambiguities within their delegated authorities.4 Judicial review of such interpretations is governed by the framework set forth in Chevron U.S.A. Inc., v. Natural Resources Defense Council.5 The Chevron case reviewed the EPA’s definition of the term “stationary source” in a regulation promulgated under the Clean Air Act.6 A unanimous Supreme Court upheld that regulation, determining that the EPA’s definition was “a permissible construction of the statute.” 7 In Chevron, the Court reasoned that

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. . . . Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.8

The broad deference the “intelligible principle” standard affords congressional delegations of authority to the other branches has met with growing skepticism from some members of the Court.9 The 2019 case of Gundy v. United States highlighted an emerging split on the High Court with respect its nondelegation doctrine jurisprudence.10 In that case, a criminal defendant challenged a provision of the Sex Offender Registration and Notification Act (SORNA) allowing, among other things, the Attorney General to “specify the applicability” of SORNA’s registration requirements to individuals convicted of a sex offense prior to the statute’s enactment.11 Writing for a four-Justice plurality, Justice Elena Kagan interpreted this provision as limiting the Attorney General’s authority to “require pre-Act offenders to register as soon as feasible,” 12 concluding that the delegation “easily passe[d] constitutional muster.” 13 For the plurality, the Attorney General’s authority under SORNA, when compared to other delegations the Court had previously upheld, was “distinctly small-bore.” 14

Notably, Justice Kagan’s opinion was met by a dissent, authored by Justice Neil Gorsuch and joined by Chief John Justice Roberts and Justice Clarence Thomas, which argued that the statute unconstitutionally provided the Attorney General “unfettered discretion.” 15 Further, the dissenters claimed that the modern intelligible principle standard has “no basis in the original meaning of the Constitution” or in historical practice.16 In response, the plurality, noting that delegations akin to the one in SORNA are “ubiquitous in the U.S. Code,” argued that as a matter of pragmatism the Court should afford deference to Congress’s judgments that such broad delegations are necessary.17 Providing the fifth vote to affirm the petitioner’s conviction was Justice Samuel Alito, who, while agreeing that the plurality correctly applied the modern nondelegation case law, indicated he would “support [the] effort” of the dissenting Justices to reconsider the intelligible principle test once a majority of the Court concurred in rethinking the doctrine.18 Accordingly, the Court in Gundy was evenly split on how deferential the Court should be with regard to congressional delegations to the other branches, raising questions as to whether the nondelegation doctrine would remain moribund.19

1: Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475–76 (2001).
2: Id. at 474, 476.
3: Id. at 457, 474.
4: United States v. Mead Corp., 533 U.S. 218, 227 (2001).
5: Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
6: Id. at 840; 42 U.S.C. § 7502.
7: Chevron U.S.A., Inc., 467 U.S. at 866.
8: Id. at 844.
9: See, e.g., Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. 43, 77 (2015) (Thomas, J., concurring) (arguing that the Court should “return to the original understanding of the federal legislative power” and reject the “boundless standard the ‘intelligible principle’ test has become” ); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1154 (10th Cir. 2016) (Gorsuch, J., concurring) (noting “thoughtful” commentary questioning whether the current intelligible principle test serves “as much as a protection against the delegation of legislative authority as a license for it, undermining the separation between the legislative and executive powers that the founders thought essential” ).
10: See Gundy v. United States, No. 17-6086, slip op. (2019). While criticisms of the intelligible principle doctrine have become more pronounced in the beginning of the 21st century, some former members of the Court had argued for striking down legislation on nondelegation grounds. See, e.g., Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 675 (1980) (Rehnquist, J., concurring); Arizona v. California, 373 U.S. 546, 626–27 (1963) (Harlan, J., dissenting).
11: 34 U.S.C. § 20913(d); see also Gundy, slip op. at 2 (plurality opinion) (discussing SORNA’s “basic registration scheme” ).
12: See Gundy, slip op. at 16 (plurality opinion).
13: Id. at 1.
14: Id. at 17.
15: Id. at 24 (Gorsuch, J., dissenting).
16: Id. at 17 (Gorsuch, J., dissenting).
17: Id. at 17–18 (plurality opinion).
18: Id. at 1 (Alito, J., concurring). Justice Brett Kavanaugh took no part in the consideration or decision in Gundy, as he was appointed to the Supreme Court after oral argument occurred in the case.
19: See, e.g., Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1274, 1302 (2006) ( “Commentators thus agree with near unanimity that the Constitution’s nondelegation norm goes essentially unenforced.” ); Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 331 (2002) ( “There is something very fundamental—indeed, almost primal—about the nondelegation doctrine that keeps resuscitating it when any rational observer would have issued a ‘code blue’ long ago.” ); Eric A. Posner & Adrian Vermeule, Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008, 76 U. Chi. L. Rev. 1613, 1630 (2009) ( “[T]he nondelegation doctrine is largely moribund at the level of constitutional law.” ).