Symmetry’s Mandate: Constraining the Politicization of American Administrative Law
Daniel E. Walters*
Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial abdication only to what I call Type I statutory errors (that is, agency interpretations that regulate more conduct than the best reading of the statute would allow the agency to regulate) and do not appear to accept or anticipate that their theory of interpretation would also extend to what I call Type II statutory errors (that is, agency failures to regulate as much conduct as the best reading of the statute would require). As a consequence, critics have been more than willing to entertain an end to Chevron deference, an administrative law doctrine that is mostly invoked to justify Type I error, but have not shown any interest in adjusting administrative law doctrine to remedy agencies’ commission of Type II error. The result is a vision of administrative law’s future that is precariously slanted against legislative and regulatory action.
I critique this asymmetry in administrative law and address potential justifications of systemic asymmetries in the doctrine, such as concern about the remedial implications of addressing Type II error, finding them all wanting from a legal and theoretical perspective. I also lay out the positive case for adhering to symmetry in administrative law doctrine. In a time of deep political conflict over regulation and administration, symmetry plays, or at the very least could play, an important role in depoliticizing administrative law, clarifying what is at stake in debates about the proper level of deference to agency legal interpretations, and disciplining partisan gamesmanship. I suggest that when the conversation is so disciplined, an administrative law without deference to both Type I and Type II error is hard to imagine due to the high judicial costs of minimizing Type II error, but if we collectively choose to discard deference notwithstanding these costs, it would be a more sustainable political choice for administrative law than embracing the current, one-sided critique of deference.
*Assistant Professor of Law, Penn State Law–University Park. The Article benefitted substantially from feedback at the Administrative Law New Scholarship Roundtable at the University of Wisconsin Law School and at the AALS New Voices in Administrative Law & Legislation workshop. In particular, I would like to thank Todd Aagaard, Jack Beermann, Dave Bridge, Cary Coglianese, Ryan Doerfler, Blake Emerson, Josh Galperin, Andrew Hammond, Kristin Hickman, Christina Ho, Ben Johnson, Heidi Kitrosser, Kati Kovacs, Matthew Lawrence, Jud Mathews, Alan Morrison, David Noll, Nick Parrillo, Zach Price, Jeff Pojanowski, James Puckett, Todd Rakoff, Steve Ross, Michael Sant’Ambrogio, Gabe Scheffler, Bijal Shah, Glen Staszewski, Mark Storslee, Wendy Wagner, Chris Walker, Ilan Wurman, and David Zaring for their feedback and encouragement. I also wish to thank the editors of the Michigan Law Review, including, but no doubt not limited to, Lucy Burke, Alexi Ehrlich, Alex Bau, and Sophia Montgomery, for their exceptionally professional work on this Article. As usual, any errors are my own.