EVEN IF Mead is not met, Skidmore is AG’s interpretation was reasonable; this is NOT a legitimate medical use (medicine is engaging in curing, not killing) – refers to dictionary, AMA, other courts Where Do Normative + Substantive Canons Fall in Chevron Terrain? Majority in Gonzales seems to think substantive/normative canons will trump Chevron deference (canon against constitutional avoidance) 9 th Cir. tends to defer rather than to make judicial assumptions (and doesn’t get reversed on this) Jeffrey Brown – Use the canons in Chevron step 2 but don’t use them to avoid deference o This is the opposite of the SCOTUS’ view, which says: In Chevron Step 2 we don’t use canons at all just defer Chevron in the States 16 states embrace Chevron Reasons for Difference: 1. Expertise – It may not be the case that the state agency is more expertise than the state judiciary 2. Delegation – Chevron’s primary justification is that Congress actually delegated lawmaking authority to the agency. This notion of legislative supremacy may not be the same on state level 3. Democratic Accountability – Whereas fed’l judges are not democratically accountable to the people, and fed’l agencies are b/c they are directly traceable to the President (Stevens said this in Chevron), state judges are mostly elected so they might be more accountable to the people 4. Dynamism – Maybe state agencies don’t revisit their decisions as much? 5. Process – States courts might be less likely to defer to state agencies since their processes are likely to be less robust than N+C procedures on the fed’l level (maybe Boreali ?) – BUT it is hard to know just what state agency procedures look like and whether state agencies are more or less captured than their federal counterparts Some argue that we should have a 5-part test w/ these considerations – but this is not done. BUT knowing the reasoning behind Chevron may held to argue that the state judiciary should defer to the state agency Chevron and Stare Decisis – Is Scalia right that Mead leads to ossification? 21
National Cable + Telecommunications Ass’n v Brand X (SCOTUS 2005) – Court of appeals declined an agency interpretation b/c it said the interpretation went against a prior decision by SCOTUS. o Majority; Thomas: Reversed The only time a court construction will trump an agency’s determination is when the court construction happened at Chevron Step 1 (when the statute is found to be unambiguous) Here the statutory terms WERE ambiguous, but since there was no agency interpretation yet, the court was forced to make its own best interpretation. This does not foreclose the agency from later reaching a different interpretation of an ambiguous term, and if it does, that later agency interpretation is entitled to judicial deference o Concurrence; Breyer: Formal process (n+c rulemaking) is NOT a sufficient condition for giving deference; b/c Congress may not have intended to give deference irrespective of process used o Dissent; Scalia: This leads to ossification
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- Spring '14
- Law, United States Congress, Veto