Professor Aditya Bamzai has a fascinating piece in the Yale Law Journal entitled “The Origins of Judicial Deference to Executive Interpretation“:
Judicial deference to executive statutory interpretation—a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council—is one of the central principles in modern American public law. Despite its significance, however, the doctrine’s origins and development are poorly understood. The Court in Chevron claimed that the roots of judicial deference stem from statutory interpretation cases dating to the early nineteenth century. Others, by contrast, have sought to locate Chevron’s doctrinal roots in judicial review’s origins in the writ of mandamus. According to the standard narrative, courts in the pre-Chevron era followed a multifactor and ad hoc approach to issues of judicial deference; there was little theory that explained the body of cases; and the holdings and reasoning of the cases were often contradictory and difficult to rationalize.
This Article challenges the standard account. It argues that the Supreme Court in Chevron, and scholarly commentators since, have misidentified nineteenth-century statutory interpretation cases applying canons of construction “respecting” contemporaneous and customary interpretation as cases deferring to executive interpretation as such. It further argues that, although the standard for obtaining a writ of mandamus was central to judicial review in the early Republic, statutory developments in the latter half of the nineteenth century (significantly, the enactment of general federal-question jurisdiction in 1875) ultimately mooted the relevance of that standard. Finally, it discusses the intellectual challenges to the traditional interpretive framework beginning in the early twentieth century; the Supreme Court’s embrace of these intellectual challenges in the early 1940s; and Congress’s attempt in the Administrative Procedure Act’s (APA) standard-of-review provision to reject the Court’s interpretive experimentation and corresponding deviation from the traditional canons. The Article thus seeks to establish—contrary to the suggestion in Chevron and recent cases—that there was no rule of statutory construction requiring judicial deference to executive interpretation qua executive interpretation in the early American Republic. And it contends that the governing statute of administrative law—the APA—was intended to codify the traditional interpretive approach and to reject the experimentation of the 1940s Court. Taken together, these conclusions cast doubt on much of the received wisdom on the doctrinal basis for the rule announced in Chevron.
As Bamzai readily acknowledges (p. 1001), Chevron deference may be justifiable on other grounds (as I have argued); his goal is to cast doubt on the historical rationales that have been advanced to support the doctrine.
I have only one quibble with Bamzai’s most interesting analysis. He draws a distinction between the standard of review applied in 19th-century mandamus cases and the courts’ general interpretive theory:
Following Decatur, the mandamus standard afforded great leeway to executive discretion in interpreting legal text—akin, in some respects, to the zone of interpretive discretion under the modern Chevron doctrine. But application of the mandamus standard was a consequence solely of the form of relief requested, not the consequence of the interpretive theory used. Therefore, a change in positive law on the cause of action would necessitate the abandonment of the mandamus standard. The Court’s use of de novo review in non-mandamus cases made that clear…(p. 958)
My Anglo-Canadian perspective may be clouding my view of the American legal landscape, but in the common law tradition I am not sure a bright-line distinction can be drawn between an “interpretive theory” and the doctrines associated with judicial review remedies.
For many years, the scope of judicial review of administrative action was co-extensive with the writs of certiorari (and prohibition) and mandamus. There was, one might say, a law of certiorari and mandamus (with various restrictions and procedural pitfalls for the unwary), but there was no law of judicial review of administrative action as such. In more recent times, especially since the procedural reforms of the 1970s and 1980s, a “comprehensive system of administrative law” has emerged ( AC 617, at p. 641 (Lord Diplock)). This modern system is usually considered to be underpinned by a general interpretive theory, but the same is not true of the machinery that was in use previously: there was no interpretive theory, there were just the prerogative writs, with all of their doctrinal complexities.
As a result, I tend to think that the mandamus cases could be called in aid of Chevron deference (or at least that it is difficult to distinguish between the doctrine memorialised in those cases and a general interpretive theory), but I may be overlooking relevant differences between American and Anglo-Canadian law. You can access Professor Bamzai’s article on the Yale Law Journal’s website.