Friday, August 19, 2005 - The Progress & Freedom Foundation Blog

Brand X, Chevron Deference, and Making Policy

In a recent National Law Journal column, "Major Case for Agencies," I explained that the Supreme Court relied heavily on so-called Chevron deference in affirming the FCC's classification of cable modem service as an "information service". And I stated, "it is at least worth considering whether the notion of indepedence claimed by the FCC is consistent with the notion of political accountability which Chevron used to justify judicial deference to agency interpretations." Neither Justice Thomas or Justice Scalia addressed this question in their majority or dissenting opinions.

I've since discovered that Elena Kagan, now dean of Harvard Law School and formerly President Clinton's Deputy Assistant for Domestic Policy, did in her pathbreaking article, Presidential Administration [Lexis subscription required], in the Harvard Law Review (114 Harvard L. Rev. 2245 (2001)). Dean Kagan declares at page 2377 that "[a] Chevron-type doctrine attuned to the role of the President would respond to this disparity [in presidental control] by giving greater deference to executive branch than to independent agencies." At least after the fact, it is reassuring to know that the dean of the Harvard Law School is thinking along the same lines as me. I'll be exploring this question in more depth in the future.

And while thinking Chevron thoughts, here's another to chew on: Post Brand X, the FCC is issuing a policy statement ennunciating four "net neutrality-like" principles. It says they are not rules, but rather "it will incorporate these principles into its ongoing policymaking activities." Note that a policy statement of the type the Commission envisions almost certainly will not be entitled to Chevron deference if the agency relies on it in the future, especially if the agency action is premised on the exercise of its ancillary jurisdiction.

More on the FCC and Chevron in the future.....

posted by Randolph May @ 10:52 AM |