Symmetry’s Mandate: Constraining the Politicization of American Administrative Law

01 Jan 2020

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.