Self-Legislation and Chevron

Thomistic Insights on Administrative Law

The New Digest is thrilled to feature this guest essay from Evelyn Blacklock. Ms Blacklock is an American lawyer and graduate of Harvard Law School currently studying theology in Rome.

Self-Legislation and Chevron

Last spring, I attended a very interesting talk, given by Professor John Bowlin of Princeton, on St. Thomas Aquinas’ conception of “self-legislation.”  Although the aim of the talk was to relate Thomistic self-legislation to the kind of human governance that might have existed in a prelapsarian state, I couldn’t help but see intriguing parallels with administrative law.  In particular, I think Bowlin’s reading of Thomistic self-legislation can help conceptually simplify the legal doctrine that currently goes under the heading of Chevron.  But I think Chevron can also bring a needed element of depth or complexity to this account of self-legislation.

I.

We usually associate “self-legislation” with Kant, but a different version of the concept also seems to show up in a somewhat cryptic way in Thomas.  In the Treatise on Law, Thomas argues to a definition of “law” as an ordinance (1) of reason, (2) for the common good, (3) made by a proper authority who has been vested with the care of the relevant community, and (4) promulgated.  Summa Theologiae (ST) I-II, Q. 90, a. 4; see generally Q. 90 aa. 1-4.  In negative terms, law can’t be an ordinance (1) of pure will or arbitrary whim, (2) for private gain or interest or disordered ends, (3) made by just anyone, or (4) kept secret.

With respect to the third element – legislation by a competent authority – Thomas considers the objection that “the reason of any man is competent to make laws,” and, therefore, “anyone can make a law for himself.”  ST I-II, Q. 90, a. 3, obj. 1.  The core of Thomas’ response to this objection refers back to the first element, ordination to the common good:  Since the common good is common, not private, only someone who is “the viceregent of the whole people” possesses competent authority to legislate for the whole community.  ST I-II, Q. 90, resp.  But, Thomas adds, there still is a certain way in which “each one is a law to himself”: namely, “insofar as he shares the direction that he receives from one who rules him.”  ST I-II, Q. 90, a. 3, ad. 1.  Thomas does not elaborate, other than to say that, in this way, a law is “in” a person “by participation.”  Id.

In another place, however, Thomas makes a distinction between the governance of free subjects or citizens and the governance of servants or slaves.  Governance of free citizens is needed, Thomas says, because humans are naturally social beings with social lives, and human communities need someone with a view of the whole to direct many individual free agents to the common good.  ST I, Q. 96, a. 4.  (Incidentally, Thomas thinks this coordinating and governing function would have been needed even in a prelapsarian state, given humans’ social nature, although nothing turns on that claim here.)  The governance of servants or slaves differs from the governance of free citizens, says Thomas, in that the servant is “ordered to another” – the ruler – rather than having the freedom to dispose himself to his own proper good.  Id.

In his talk, Professor Bowlin tries to bring together these two ideas – the governance of free citizens and the notion that individuals can somehow “share” in legal directives – in order to propose a Thomistic understanding of “self-legislation.”  What does it mean for a free citizen to “share the direction that he receives from one who rules him”?  Bowlin proposes that this individual “sharing in” or “self-legislating obedience to” a given law must itself recapitulate the four basic aspects of law:  It must be grounded in reason, ordered to the common good, done under competent authority, and somehow promulgated.

To make this less abstract, Bowlin offers some analogies taken from domestic life.  For simplicity, I am mixing two of his analogies and making some modifications.  Suppose a father asks his son to arrange a big party for a group of friends.  He tells his son that this should be a feast that brings honor to the family and delight to their friends.  Then he leaves, entrusting the details to his son.  The son sees the party as good for the family and endorses the plan.  He thinks about past parties, looks at old guest lists, and considers who should count as friends, what will delight them, etc.  When his father returns, the son welcomes him to the party and presents him with what Bowlin calls a two-part petition.

First, the son asks the father to recognize his rightful authority or competence to decide on the guest list, the menu, and so on, sincethe father entrusted the overall party-planning task to him, and the father’s instructions were general and left the specification of suchdetails open.  As Bowlin puts it in more technical language, the son asks the father to “recognize his authority over the inferential articulation” of the father’s directive, “over the practical commitments that can and cannot be inferred,” and that “give the rule its material content, its specific shape and range in these circumstances.”  This includes the authority to interpret “key terms,” such as “friends,” “delight,” and so on.

Second, the son asks the father to recognize his actual success in following the directive – to recognize “as right” the son’s “application of key terms,” consideration of precedent, and, in sum, to recognize “all he has done” as “correctly identifying” what the father’s directive “actually requires, excludes, and permits in these circumstances.”

Of course, this account is a bit contrived, and it’s unlikely that a father-son relationship would play out in such a formal way.  But the point is to try to tease out what it might mean for the son to be a free “citizen,” so to speak, yet subject to the directive or law of another, and yet somehow also obedientially “self-legislating.”  According to Bowlin (or, at least, how I understand him), the son’s implementation should be considered self-legislating because it shares in or recapitulates the four basic aspects of law:  The son recognizes the father’s directive as grounded in reason and aimed at the family’s common good, and so he endorses the directive as his own; he seems to have competent authority to flesh out the details by virtue of the generality of the directive and his place in the family; and he engages in a kind of “promulgation” when he asks his father to recognize his success in implementing the directive.  Bowlin adds that this two-part petitionary structure will at least implicitly characterize any interaction in which an agent is entrusted with implementing the directives of a superior:  “We will ask them to recognize us as self-ruling even as we are ruled – self-ruling precisely because we are at least partially responsible for the material and conceptual content of the norms that bind us.”

II.

Now, Bowlin’s interpretation of Thomas is not necessarily the only way to read him.  But the structured process of “self-legislation” that Bowlin articulates is strikingly similar to the basic process undertaken by administrative agencies when they implement statutes enacted by Congress.  

Suppose, for example, that Congress enacts a statute setting out a broad framework for food and drug safety and entrusts that statute to the Food and Drug Administration to implement.  While the statute sets out goals and policy aims and includes some more specific provisions, it leaves many material and programmatic specifics open for the agency to determine, within the confines of the overall statutory framework.  

The agency accepts this mandate from Congress as grounded in reason and directed at the common good and endorses the statute as part of its mission.  By doing so, the agency “participates” in the first two aspects of the essence of law, and this “participation” seems to be implicitly recognized in the venerable legal doctrines that afford executive branch actions a presumption of regularity.  The agency then issues rules or takes other actions to implement the statute, in the process consulting precedent, taking into account Congress’ aims as expressed in the overall statutory scheme, and interpreting the meaning of key terms.

If the agency’s rules or actions implementing the statute are challenged, and the case goes before a court, the agency presents the court with a two-part petition.  First, the agency asks the court to recognize its authority or competence to flesh out the details of the statutory scheme enacted by Congress.  That authority seems to be at least implied by virtue of the fact that Congress left details unspecified and key terms under- or undefined, together with the fact that Congress created the FDA to implement such statutes and entrusted this statute to the agency’s implementation.  This first part of the petition roughly corresponds to the Chevron “Step Zero” inquiry, which asks whether “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law” and whether the agency rule or action “was promulgated in the exercise of that authority.”  United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).  This first part of the petition also corresponds to the third essential characteristic of law, that it be issued by competent authority.

In the second part of the petition, the agency asks the court to recognize its rule or action implementing the statute – including its interpretation and application of key terms, its consideration of precedent, and so on – as reasonably identifying what the statute requires, excludes, and permits in these circumstances.  This second part of the petition corresponds to the core Chevron inquiry, which asks whether the agency’s rule or action is “based on a permissible construction of the statute.”  Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 (1984).  It also seems to correspond – but this is harder to see – to the fourth essential characteristic of law, promulgation.  Of course, the agency has already “promulgated” its action or rule before any court challenge.  But, at least on Bowlin’s account of self-legislation, the agency’s petition for judicial recognition seems to also participate in (or perhaps complete) the act of promulgation.

In sum, the basic process undertaken by agencies when they implement statutes enacted by Congress tracks the process of obediential “self-legislation” that Bowlin sees in Thomas:  The agency recognizes Congress’ directive as grounded in reason and aimed at the common good, and so it endorses the directive as its own; it seems to have competent authority to determine and flesh out unspecified details by virtue of the generality of the directive and its entrustment by Congress; and it engages in a kind of “promulgation” when it asks a court to recognize its success in implementing the directive.

But so what?  Is this just an interesting coincidence?  I think not.  On one side, the fact that legal reality tracks Bowlin’s model seems to confirm that model as bringing out something true about the implementation of law, where an agent is acting obedientially, yet is also in some sense free in virtue of the shared responsibility the agent has to implement the law.  On the other side, the fact that legal reality seems to unselfconsciously track legal theory here might suggest that the legal reality is fundamentally sound, at least if Thomas’ account of law is true.  In other words, there is mutual corroboration here, not mere coincidence.

III.

Let me start with legal reality.  Chevron can appear to be an excessively complex legal doctrine.  There are debates about how many “steps” it has, the size of its “domain,” how it is triggered, how it relates to other forms of review, what level of judicial deference is appropriate, how it fits with the Administrative Procedure Act, and so on.  But at its core, Chevron is simple, and Bowlin’s model of Thomistic self-legislation helps bring that out.  

There is a deep and perhaps inevitable logic to the basic Chevron structure.  Because no (human) law-giver can perfectly anticipate every possible situation to which a law may apply, or take all important factors into consideration within reasonable time and resource constraints, law is always inescapably general to some degree and requires further specification.  The law-giver thus frames the law at the level of generality it deems appropriate in the circumstances and leaves further specification to those bodies entrusted with implementing and applying the law, usually the executive in the first instance and the judiciary in the second.  Like the legislator, the executive possesses a public mandate in its own right, so it is a “free agent” in the sense that it is not simply an extension of the law-giver (and the same goes for the judiciary).  At the same time, law-implementers and law-appliers are in some sense subordinate to the law-giver as primary source of law.  How to reconcile this freedom with this subordination?  The answer seems to lie in recognizing that those bodies entrusted with implementing and applying the law can participate in the legislator’s law-giving by filling out the details in a way that is grounded in reason, public-directed, properly authorized, and ultimately recognized by courts empowered to render judgment in particular cases.

Of course, this simplified account leaves out many details, such as whether it is possible for Congress to legislate too generally (and how to measure that), whether courts are better positioned than the executive to answer some kinds of statutory questions left open by Congress, how deferential judicial review should be, and so on.  But there is an important sense in which those really are details – they affect different aspects of the process of law-making and implementation, but they do not fundamentally alter the ordered structure.  Or, at least, that would be the argument:  No matter how we tinker with this or that aspect of the process, it will still basically track the structure of Thomistic “self-legislation” because that structure holds together the superiority of the law-giver with the free but obediential agency of the law-implementer.

In short, if it is true that Bowlin’s Thomistic self-legislation model offers a good explanatory account of what Chevron doctrine is trying to capture, then the model can help distill the doctrine and simplify some of its apparent complexity.  It may also help restore some degree of confidence in a distilled version of Chevron.  Bowlin’s model shows that a law-implementer can participate in law-giving without thereby displacing or taking power away from the primary law-giver.  It is a cooperative rather than competitive or zero-sum vision of law-giving and law-implementation.  To be sure, it would take some more work to fit this model to constitutional doctrine on separation of powers, which tends to assume a competitive rather than cooperative vision.  But this model shows that there is nothing in the nature of law-giving and law-implementation that dictates a competitive vision.

IV.

Let me turn now to what legal theory might be able to learn from legal reality.  Although the theory of Thomistic self-legislation, at least as presented by Bowlin, places primary emphasis on the first part of the two-part petition, legal reality, at least as experienced under Chevron, suggests that the second part deserves more attention.

In his account of the two-part petition, Bowlin focuses primarily on the first part, the request to recognize the agent’s competent authority to implement and further specify a general legal directive.  Bowlin focuses on this first part of the petition because he wants to draw a contrast with arbitrary or tyrannical governance.  In Bowlin’s presentation, the difference between “self-legislation” under just rule and mere slavish obedience under tyrannical rule turns on the response of the law-giver to the first part of the petition.  In the case of self-legislation under just rule, the law-giver will respond to the first part of the petition by recognizing the agent’s competent authority to implement the law, as long as the law-giver did in fact entrust a general legal directive to the agent to implement.  In the case of slavish obedience under tyrannical rule, by contrast, the law-giver may or may not recognize the agent’s competent authority to implement the law.  An affirmative response to the first part of the petition is never assured, but always subject to the will of the law-giver, who can always arbitrarily deny the agent’s competent authority.  In the world of Chevron, the analog would be an entirely arbitrary and standardless “Step Zero,” such that the agency could never know, based on the scope and nature of the statute entrusted to it by Congress, whether it possessed competent authority to fill out and further specify the statutory framework.

As for the second part of the petition – the request that the law-giver recognize the agent’s success in actually implementing the law – Bowlin says relatively little, apart from stating that a tyrannical law-giver who arbitrarily denies the first part of the petition is unlikely to then grant the second part.  He briefly considers, but does not really explore, a third possibility, that a law-giver might grant the first part of the petition (competent authority) but then deny the second part (successful implementation).  

In a way, Bowlin’s emphasis on the first part of the petition makes perfectly good sense.  If the aim is to distinguish obediential self-legislation from mere slavish obedience, “recognizable authority to specify the content of the dictate” seems to be a necessary distinguishing factor.  The experience of Chevron, however, suggests that while that factor is necessary, it is not sufficient.  The second part of the petition – both how it is phrased, and how it is answered – are also critically important.  An affirmative answer to the first part of the petition does not guarantee an affirmative answer to the second part.  Conversely, a negative answer to the second part of the petition (successful implementation) can amount to a negative answer to the first part (competent authority).

Perhaps the easiest way to see the importance of the second part of the petition is to focus on the way Bowlin phrases it.  In his terms, the second part of the petition asks the law-giver to recognize the agent’s implementation of a legal directive and application of its key terms as “right” or “correct[].”  In the world of Chevron, by contrast, the question is whether the agency’s interpretation and implementation of law is reasonable – whether it falls within the range of reasonable options set by the boundaries of the statute.  The difference between “right” and “reasonable” is an important one, and at the heart of Chevron.  If, by hypothesis, there is only one “right” interpretation of a statute, then an agency could conceivably receive an affirmative answer to the first part of the petition (competent authority), but a negative response to the second part (successful implementation), on the ground that the agency possessed general authority to implement a statutory scheme, but failed to light on the one correct way to do so.  For example, the FDA could seek to regulate tobacco as a “drug or device” under the Food, Drug, and Cosmetic Act, but be denied the power to do so, not because the FDA lacks authority generally to interpret and implement the Act, but on the ground that the only “correct” interpretation of “drug or device” excludes tobacco.  Or, in the party-planning scenario, the father could acknowledge the son’s general authority to plan the party, but still refuse to recognize his success in doing so, on the ground that the son’s guest list failed to “correctly” interpret the father’s wishes, even if it was a reasonable interpretation.  

Yet if an affirmative answer to the second part of the petition requires a “right,” rather than a “reasonable,” interpretation and implementation of the original directive, then it is quite easy to imagine that the second part of the petition might frequently be denied, even if the first part (competent authority) is affirmed.  After all, an agent is going to need to submit this two-part petition only when a law-giver issues a general directive that is open to interpretation and needs further specification.  If the law-giver’s directive is already fully specified and determined (“drug or device includes X and does not include tobacco”; “the guest list includes X and not Y”), then there is no real question of authority, only of successful (correct) implementation.  But if the original directive is not fully specified, there are likely many reasonable ways to interpret and implement it.  And, in that case, a regime in which an affirmative answer to the second part of the petition requires a “correct” interpretation, rather than a reasonable one, fails to take into account the indeterminate nature of the original legal directive.

But I think we can go further and say that such a regime also undermines the very notion of competent authority.  In other words, in a regime where the second part of the petition is frequently denied on the ground that the agent failed to “correctly” interpret and implement an open-textured directive, the first part of the petition is also effectively denied, even if it is formally granted.  This is because the power to make interpretive and implementative choices within a reasonable range of options cannot really be separated from competent authority to interpret and implement law.  Reasonable discretion to implement just goes with competent authority; otherwise, the authority is contentless, meaningless, unable to be exercised in any real way.  

Put another way, the two-part petitionary structure of “self-legislation” arises only when a law-giver seemingly expected the agent to flesh out a general legal directive and thereby participate in law-giving.  But in a regime where an affirmative answer to the second part of the petition requires a “correct” rather than a “reasonable” implementation, a negative answer to the second part of the petition is effectively also a negative answer to the first part of the petition, and effectively also a negation of the entire regime of shared authority to implement the law.  In the world of Chevron, to make the point concrete, a denial of the FDA’s power to choose among reasonable interpretations and modes of implementation within statutory bounds would in effect also be a denial of its competent “Step Zero” authority to share in Congress’ primary authority over the statute.  There can be no real shared authority where an agency’s successful implementation is recognized only when it is “right” rather than when it is “reasonable.”  In such a regime, the agency is in the analogous position of a slave or servant, not the position of an obedient but free citizen.

This, in any event, is what I suggest that legal reality (Chevron) can teach legal theory (Bowlin’s account of Thomistic self-legislation).  The two parts of the petition, competent authority and successful implementation, are closely related and interdependent. If the second part is cast in terms of “right” or “correct” rather than “reasonable” implementation, the first part (competent authority) is at least arguably a dead letter.  Thus, a coherent theory of self-legislation needs to recognize that from an affirmative answer to the first part of the petition flows the power to make reasonable determinations or specifications within the bounds of the original directive.  To be sure, it is possible that Bowlin would agree entirely with this claim, and that by “correct” he simply means “reasonable” in the Chevron sense.  But his account is not clear on that point, and perhaps the real-world experience and doctrine of Chevron can provide some helpful clarity.

V.

Let me close by summarizing what I have and haven’t argued.  I have taken Bowlin’s account of Thomistic self-legislation more or less at face value, as basically plausible.  I have suggested that there is an interesting parallel between Thomistic self-legislation and Chevron doctrine as it currently stands, considered broadly and schematically.  In particular, Chevron seems to tacitly presume or follow essentially the same ordered process that Bowlin presents as the process of Thomistic self-legislation:  The agency accepts and endorses the mandate of Congress as grounded in reason and directed at the common good, it specifies or fleshes out indeterminate statutory directives entrusted to it by Congress, and it petitions for recognition of its authority in successfully implementing those directives.  

I have also suggested that legal reality (Chevron) can learn something from legal theory (Thomistic self-legislation), and vice versa.  As for what legal reality can learn from legal theory, I have argued that Bowlin’s account of Thomistic self-legislation can help distill and clarify the core of Chevron doctrine.  At its core, Chevron accounts for the indeterminacy of law and holds together the primacy of the law-giver with the free but obediential agency of the law-implementer.  So distilled, Chevron is more straightforward than the doctrinal curlicues may make it seem, and it may also reflect an inevitable logic of law-making and implementation.  

As for what legal theory can learn from legal reality, I have argued that Chevron doctrine can help highlight the interdependence of two aspects of law implementation, competent authority and successful implementation.  In particular, through its insistence on reasonableness, rather than “rightness” or “correctness,” as the test of successful implementation, Chevron can enrich our understanding of the second part of the two-part petition that Bowlin identifies as a stage in the process of self-legislation.  Further, Chevron shows how an insistence on “correct” implementation, rather than reasonable implementation, would in effect deprive the law-implementer of competent authority to obedientially specify and determine indeterminate law, thereby negating the entire notion of self-legislation by participation, and making the law-implementer more analogous to a servant or slave than to a free citizen.  

All that is quite general.  I have not made any claims about particular disputed aspects of Chevron, and I have blurred certain doctrinal distinctions (such as legal interpretation under Chevron and rationality review under State Farm).  I have not tried to fit the model of Thomistic self-legislation perfectly neatly to Chevron doctrine or to constitutional theory, and I have not addressed the implications of some dis-analogous aspects of the model, such as that Congress and the executive are co-equal branches, not exactly in a principal-agent or father-son relationship, and that the judiciary is a third party, not the law-giver itself.  Relatedly, I have not addressed the balance of shared authority between the executive and the judiciary, which is often the real concern in Chevron cases.  I have instead focused on how the model of Thomistic self-legislation can help clarify the balance of shared authority between Congress and the executive, which is antecedent.  Finally, I have avoided almost all legalese typically associated with Chevron (such as “delegation,” “deference,” and so on).  Those were all deliberate choices.  My aim here was primarily conceptual, to use an interesting legal theory to shed some light on what often seems to be an overcomplicated legal doctrine, and likewise to use the doctrine to reflect back some experiential wisdom on the theory.  If nothing else, my hope is to show that legal doctrine and legal theory should be in deeper conversation with one another, as each can help clarify, distill, and strengthen the other.