{
  "id": "R41305",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "R41305",
  "active": false,
  "source": "EveryCRSReport.com",
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      "source": "EveryCRSReport.com",
      "id": 364042,
      "date": "2010-06-25",
      "retrieved": "2016-04-07T01:35:54.027954",
      "title": "Supreme Court Nominee Elena Kagan: Administrative Law and the Nondelegation Doctrine ",
      "summary": "This report discusses and analyzes Supreme Court nominee Elena Kagan\u2019s 2001 article, Chevron\u2019s Nondelegation Doctrine, which she coauthored with David J. Barron, an assistant professor at Harvard Law School, during her time as a professor there.\nThe 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.\nUnder Barron and Kagan\u2019s Chevron nondelegation doctrine, the agency\u2019s interpretation would receive a type of substantial deference from the courts, known as \u201cChevron deference,\u201d if the individual designated by Congress to carry out the statute (the statutory delegatee) has formally adopted the agency\u2019s decision after a meaningful review and issued the decision under her name. The agency\u2019s interpretation would receive a weaker type of judicial deference, known as Skidmore deference, if the statutory delegatee subdelegated her decisionmaking 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\u2014a high- or low-level agency employee.\nIf adopted by the Supreme Court, the Chevron nondelegation doctrine would appear to result in a major reformulation of the Court\u2019s 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.\nBarron and Kagan\u2019s proposed Chevron nondelegation doctrine would address a phenomenon of \u201cjudicial channeling\u201d that the authors call \u201cunfortunate\u201d\u2014that an agency\u2019s discretion in choosing from the multitude of legitimate modes of agency decisionmaking is both influenced and limited by the courts\u2019 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\u2019s decision or interpretation is a lawful, or valid, action.",
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