Supreme Court Nominee Elena Kagan: Administrative Law and the Nondelegation Doctrine

Vanessa K. Burrows
Legislative Attorney

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 decision making 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 decision making 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.


Date of Report: June 25, 2010
Number of Pages: 37
Order Number: R41305
Price: $29.95

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.