An interesting note in the Georgetown Law Journal by Aaron Cooper on the continued viability of Chevron deference in a world where regulatory decision making is largely privatized, and not democratically “appointed” actors! Here is the abstract:
Judicial interpretation of regulatory standards generally relies on the presumption that agencies are politically accountable and democratically “appointed” actors. As a result, courts defer to reasonable agency interpretations of ambiguous statutory language. This presumption, however, is severely outdated. The regulatory arena is replete with the privatization of regulatory decision making, which puts the current approach to agency deference in question. This Note seeks to address the changing nature of the regulatory framework by suggesting a modification of agency deference doctrine that accounts for the increasingly active role played by private parties in public governance. In proposing a new framework for agency deference in cases of private delegation, the Note explores parallels between agency deference and the non-delegation doctrine, addresses the relationship of agency deference to the separation of powers and the fragmentation of the political branches, and seeks to reinstate the judiciary as a primary expositor of statutory meaning in the private delegation context.
What does Cooper mean by private governance?
Across the board, regulation is increasingly performed by private actors under privately set standards.1 Well-known examples include the privatization of public military force—the most notorious including the use of Blackwater security guards in the Iraq reconstruction effort2; the privatization of detention facilities, both prisons and immigration detention centers3; and the privatization of domain-naming rights for the Internet, through the Internet Corporation for Assigned Names and Numbers (ICANN).4 This privatization has always caused discomfort for some, particularly when the government appears to delegate the protection of traditionally public values to private entities, and extends to some of our most democratic institutions.5 The anxiety over privatization is pervasive, and in the words of one commentator, has created a ―crisis of legitimacy‖ for the administrative state.
And what does he suggest? Instead of the Chevron Two-Step, he proposes a Chevron Sidestep 🙂
As regards a deference framework that was justified at its inception by the institutional competence and constitutional legitimacy of agencies, what happens when agencies are no longer the only—or the most important—institutions in the picture? How is it that the private delegation model once vigorously rejected by the Court in Schechter Poultry goes unquestioned now? How can, and how should, Chevron deference account for these inconsistencies?
This Note will seek to answer these questions by proposing a new deference framework for review of regulatory interpretive decisions that function as private delegations. Part I first revisits the Court‘s rejection of private delegations in the pre-New Deal era, as exemplified in Schechter Poultry and Carter Coal, and notes the similarity between these rejected delegations and the various ways in which privatization operates now. Part I then develops a classification for identifying the various methods of private delegation based on congressional intent and political accountability, the mainstays of standard deference doctrine. Part II offers a possible explanation for why the rebirth of private delegations has taken place without a similar outcry from courts, and suggests that the replacement of a strict nondelegation doctrine with prodelegation Chevron deference is partly responsible. Part III documents how this metamorphosis of the regulatory state tends to undermine Chevron‘s central justifications. Part IV explores the fallout: what role should courts play in Chevron‘s absence, and how can a new deference doctrine mediate between political necessity and values inherent in the Constitution and the rule of law? Part IV then proposes a new ―persuasive deference‖ framework, in the vein of Skidmore deference, as a potential resolution.