This report analyzes Supreme Court nominee Elena Kagan's co-authored article, written with David Barron, on the nondelegation doctrine and the seminal administrative law case, Chevron U.S.A., Inc. v. Natural Resource s Defense Council, Inc . Barron and Kagan's Chevron nondelegation theory would shift the applicable type of judicial deference away from a focus on the agency's use of formal procedures, such as those set forth in the APA, or informal procedures. An Overview of the Congressional Nondelegation Doctrine

The nondelegation doctrine concerns the delegation of legislative power to administrative or executive branch agencies. As discussed above, the Supreme Court has already elucidated several types of judicial deference to agency action, including Chevron and Skidmore deference. Under the Chevron nondelegation doctrine proposed in the article, whether an agency decision receives Chevron or a lesser type of deference for its actions depends on whether one or two delegations have occurred. According to the authors, in the Chevron decision and the years afterward, Chevron deference to agencies was explained and justified through several different theories: (1) the "institutional competencies" theory, which could be viewed as the Court's establishment of "a common law of judicial review responsive to institutional competencies" such as agencies' "accountability and deliberativeness" in interpretive decisionmaking; (2) the statutory theory, which connected deference to agencies with congressional delegation of responsibilities to agencies—ambiguities in statutes could be viewed as congressional delegations to agencies to explain such ambiguities in regulations; and (3) separation of powers principles, which would grant deference to agencies rather than courts for decisions that interpret ambiguous statutes. The agency's interpretation would receive Skidmore deference from the courts if the statutory delegatee subdelegated her decisionmaking authority to another agency official (other than her close advisors). Thus, under the Chevron nondelegation doctrine, the institutional choice between whether agencies or courts should interpret and resolve ambiguous statutes would depend on the question of institutional design. Mode of the Decision

With regard to the mode of the decision, the statutory delegatee's decision can receive Chevron deference if the interpretation (1) is authored by the delegatee or is adopted and issued under her name and (2) is adopted by the delegatee after a meaningful review by the delegatee or her close advisors. Barron and Kagan's approach would apply regardless of the two traditional administrative law dichotomies—the use of formal or informal procedures and the general or particular applicability of the decision. Additional Considerations

			Vacancies in the Statutory Delegatee Position

It is worth noting that while the Chevron nondelegation doctrine addresses the levels of deference that decisions issued by high- and lower-level agency officials may be granted, Barron and Kagan do not address how their doctrine would respond to a vacancy in the position of the statutory delegatee or the level of deference that a court may grant to an officer who is acting as the head of an agency in a temporary capacity (for example, pursuant to the Vacancies Reform Act of 1998). Barron and Kagan's theory applying Chevron deference, in which the agency is arguably the decisionmaker, only to agency actions formally adopted after meaningful review by the statutory delegatee would arguably result in a major reformulation of the Court's jurisprudence regarding which agency actions receive Chevron deference.
This report discusses and analyzes Supreme Court nominee Elena Kagan's 2001 article, Chevron's Nondelegation Doctrine, which she coauthored with David J. Barron, an assistant professor at Harvard Law School, during her time as a professor there.
The article provides an overview of two traditional dichotomies in administrative law on which courts rely in choosing between whether to accord deference to agency interpretations of statutory provisions: (1) the use of formal or informal procedures, such as the procedures set forth in the Administrative Procedure Act (APA), and (2) the general or particular applicability of agency decisions, such as whether an agency action binds more than one party. The authors propose a new method of determining what type of judicial review should apply to agency actions. They term this approach the Chevron nondelegation doctrine and emphasize its roots in ideas of political accountability and discipline of agency action.
Under Barron and Kagan's Chevron nondelegation doctrine, the agency's interpretation would receive a type of substantial deference from the courts, known as "Chevron deference," if the individual designated by Congress to carry out the statute (the statutory delegatee) has formally adopted the agency's decision after a meaningful review and issued the decision under her name. The agency's interpretation would receive a weaker type of judicial deference, known as Skidmore deference, if the statutory delegatee subdelegated her decisionmaking authority to a lower-level agency official (other than her close advisors). Thus, under the Chevron nondelegation doctrine, the choice between whether agencies or courts should interpret and resolve ambiguous statutes would depend on the question of who in the agency makes the interpretation—a high- or low-level agency employee.
If adopted by the Supreme Court, the Chevron nondelegation doctrine would appear to result in a major reformulation of the Court's jurisprudence regarding which agency actions receive Chevron deference. Courts generally do not focus on the identity of the agency decisionmaker, but rather view agencies as a single entity and do not differentiate in the levels of deference that they grant to decisions issued by civil servants or political appointees, branch chiefs or headquarters officials, agency heads or low-level employees.
Barron and Kagan's proposed Chevron nondelegation doctrine would address a phenomenon of "judicial channeling" that the authors call "unfortunate"—that an agency's discretion in choosing from the multitude of legitimate modes of agency decisionmaking is both influenced and limited by the courts' application of the more substantial Chevron deference to decisions undertaken with greater procedural formality or that apply more generally. Their Chevron nondelegation doctrine appears to address this problem by relegating the procedural requirements of the APA to a threshold determination of whether the agency's decision or interpretation is a lawful, or valid, action.