The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences
Nathan Alexander Sales & Jonathan H. Adler | 2009 U. Ill. L. Rev. 1497
Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This Article argues that, in general, they should not. The authors begin by identifying and detailing the various different types of “jurisdictional questions” that may arise in statutory interpretation. The Article then surveys how courts have analyzed these different aspects of the jurisdiction problem, with a particular attention directed to statutory silences. The Court’s Chevron jurisprudence strongly suggests that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, the authors argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence-of-power and scope-of-power cases, but courts should show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. The authors support their proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counter-arguments to their proposal—particularly the potential difficulty in distinguishing between jurisdictional and nonjurisdictional questions—this Article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.