In 2006, I published an article in the Administrative Law Review entitled "Defining Deference Down: Independent Agencies and Chevron Deference." In that article I posed the question, “Should the statutory interpretations of independent regulatory agencies, such as the FCC’s determination at issue in Brand X, be accorded a lesser degree of judicial deference than those accorded to executive branch agencies?” In response, I suggested that “a reading of Chevron that accords less deference to independent agencies’ decisions than to those of executive branch agencies would be more consistent with our constitutional system and its values.”
In this follow-on article, I discuss last Term's decision in FCC v. Fox Television Stations, Inc., in which the Supreme Court affirmed a change of FCC policy to the effect that even isolated, non-repetitive incidents of indecent speech could be sanctioned. While the Court in Fox did not address Chevron directly, there were certainly Chevron-like echoes as the Justices debated the relevance of the FCC’s political accountability (or lack thereof) to determine whether the proper standard of review should be more or less searching. With "Defining Deference Down," based on what I see as the principal political accountability rationale underpinning Chevron, my project was to begin a more robust dialogue concerning whether a less deferential judicial review standard of independent agency actions would be more consistent with core separation-of-powers values. While I expect Fox will be seen foremost through the lens of a more conventional administrative law “change of agency policy” case, I have hopes it will also be an impetus for the dialogue that I aim to further with this new article.
An interesting sidelight discussed in the article relates to Justice Scalia's citation of Solicitor General Elena Kagan's "Presidential Administration" article in support of his view that the decisions of independent agencies should not be subject to more searching judicial scrutiny than those of executive agencies. In fact, in "Presidential Administration," Kagan explicitly advocates that independent agencies should receive less Chevron deference than executive agencies because they are less politically accountable.