Sidebar

In Procedures as Politics in Administrative Law, I aim to connect the insights of legal scholars and positive political theory (PPT) scholars about the purpose of administrative procedures. For some time now, legal scholars and PPT scholars have maintained parallel but largely independent discussions of this subject. According to legal scholars, administrative procedures serve due process or rule-of-law values and often run at odds with political values, including accountability and efficiency. Because administrative law has vacillated over time between procedures and politics, it seems to contain significant tensions. For example, agencies must confront the prospect of judicial scrutiny but are due judicial deference for their decisions. Agencies must choose procedures that command the force of law, but have a choice among procedures. Agencies must answer for their failures to enforce the law but may choose whether to enforce the law. Within this framework, legal scholars have divided themselves into two camps: those who favor procedure, and those who favor politics.

Skidmore deference—the standard of judicial review of agency legal interpretations articulated in Skidmore v. Swift & Co.[1]—is an old doctrine. The Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc.[2] arguably rendered Skidmore irrelevant; but more recent Court pronouncements in Christensen v. Harris County[3] and United States v. Mead Corp.[4] resurrected Skidmore deference as an alternative to Chevron. Since Christensen and Mead, Skidmore has reemerged as a unique and frequently used standard of review. Yet while reams of scholarly articles evaluate Chevron and Mead, contemporary scholarship offers comparatively little analysis of Skidmore as a doctrine.

Photo: S.E. MosesIn Constitutional Avoidance in the Executive Branch, I argue that deciding whether executive branch actors should employ any given judicially-developed rule of statutory construction requires considering both the theory underlying the rule and the context in which it will be deployed. I apply those considerations to the executive’s use of the canon of constitutional avoidance, which provides that where an otherwise acceptable construction of a statute would raise serious constitutional problems, the statute should be construed to avoid such problems unless such a construction is plainly contrary to the intent of Congress. I identify two different theoretical accounts of the avoidance canon in the article, and here I want to focus on an important implication of one of those accounts.