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Chevron and Agency Norm Entrepreneurship (with Kevin Schwartz), 115 Yale L.J. 2623 (2006)


If Congress has delegated lawmaling authority to an agency and has not specifically addressed an issue covered by the statute, the Supreme Court's Chevron doctrine requires judges to defer to reasonable agency interpretations. Justice Scalia maintains that deference is grounded, at least in part, in the executive branch's own lawmaling authority; hence, judges should defer to virtually all agency interpretations not inconsistent with statutory plain meaning. This Symposium reveals that Scalia's reading is gathering academic support. Yet the Court continues to reject his understanding of Chevron, as illustrated by the recent decision of Gonzales v. Oregon.

The Federal Controlled Substances Act of 1970 (CSA) makes it a crime to possess or distribute addictive or psychotropic drugs. The Act requires doctors to register before they can issue such controlled substances, and the Attorney General has the authority to deny registration when it would be in the "public interest." In 1994, Oregon's legislature enacted a statute authorizing doctors to administer lethal drugs to terminally ill patients. Concluding that Oregon's statutory regime involved wrongful use of controlled substances, Attorney General Ashcroft in 2001 issued a Directive interpreting the CSA to bar such medical practices, effectively preempting Oregon's euthanasia law. Ashcroft's interpretation is an example of agency norm-entrepreneurship, the reasoned application of fundamental norms by agencies when they apply statutory directives.

Over Scalia's objections, the Supreme Court rejected Ashcroft's interpretation in Oregon. Because there had been no congressional delegation, the Court found Chevron deference inapposite; the majority further ruled that the "public interest" standards of the Act did not justify preempting state regulation of medical practices. As Oregon illustrates, agencies have become an important situs for the expression and testing of public norms. We argue that their norm-entrepreneurship complicates the Chevron debate. When public values are implicated, the sharp rule-like edges of both the Chevron framework and Scalia's alternative will be fuzzier and more standard-like in practice.

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