Tuesday, October 17, 2023

Comparative Administrative Law: Is the U.S. an Outlier? A Concluding Essay

Guest Blogger

For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law

Susan Rose-Ackerman & Oren Tamir

Over the past two weeks, the Balkinization blog hosted a wide-ranging symposium about judicial deference to the statutory interpretations of administrative agencies (or the executive more broadly) around the world. As we explained in our opening essay, the immediate trigger for this symposium was the forthcoming Loper case that has put Chevron on the Court’s agenda in the current term, and Justice Gorsuch’s dissent from the denial of cert in Buffington where he invoked comparative law to critique Chevron deference. However, our goal in organizing the symposium stretches beyond the fate of Chevron deference in U.S. public law. We believe there is merit in more broadly exploring what the United States can learn from comparative administrative law in general. Moreover, we want to ask questions about the responsibilities of those who wish to engage in comparative public law to shed light on their own systems of law (as we both think they should). 
The first message, reflected powerfully in all the contributions, is that every modern democracy requires some combination of administrative bodies and courts to resolve complex questions of statutory interpretation. But which institution has the last word? If administrative interpretations are subject to judicial review, several countries’ judiciaries assert that their courts do not (and should not) explicitly defer to the executive. Thus, Carols Ari Sundfeld and Yasser Gabriel show that in Brazil courts do not recognize a place for general deference to the administration. Liz Fisher confirms the same about England, by saying that its judges “do not talk of deference in the statutory construction context” but rather announce that “questions of law are questions for the court.” In Australia, Janina Boughey claims that there is no explicit judicial deference to the executive. In fact, Australia’s High Court stated that deference on interpretive questions was nothing less than an “abdication of judicial responsibility” (in a case considering Chevron in obiter). As Boughey further mentions, Australian judges would even get seriously angry if one asked them straightforwardly to defer. In India, explicit talk of judicial deference to executive interpretation is similarly absent and would be considered an “absurdity,” as Raeesa Vakeel explains. And this is the status quo as well in France as Duncan Fairgrieve and François Lichère show. In Germany, although some statutes provide a “margin of appreciation” (or an “assessment prerogative”), Jasper Kamradt and Matthias Ruffert claim that this leeway is available only in a few “pockets” of German administrative law. They also suggest that the level of judicial control over the interpretation of delegations of power to administrative agencies in Germany is exceptional even by European standards.
Even where the contributions highlight that formal deference to the executive’s interpretations of law is explicitly recognized as a doctrinal matter, they also show that this form of deference operates very differently than it does under Chevron. For instance, in Canada, as Paul Daly powerfully shows, deference is recognized in many areas of the law and was entrenched and affirmed in a recent canonical judgment of the Canadian Supreme Court (called Vavilov). But, the Canadian approach depends not so much on the ambiguity or vagueness of statutory terms. Rather, it has to do with the overall quality of the reasoning agencies use to justify their actions (as well as the quality of the processes that led them to their decisions). Chevron deference, of course, does depend upon the “reasonableness” of the agency’s rule but, as interpreted by courts today, it is not necessarily or even primarily geared toward that the quality of the reasoning (on the unique features of review based on the quality of reason-giving, see especially the work of Jerry Mashaw). Similarly, in South Africa, as Geo Quinot details in his own interesting post, there is also wide and explicit recognition of the need for judicial deference to the executive’s interpretation. But, as Quinot is emphasizes, that recognition is not tied to vagueness or ambiguity in statutory language as in Chevron. Rather, it is linked to South Africa’s aspirations to “transformative constitutionalism”—that is, it depends on how much the executive’s proposed interpretation substantively advances the project of attaining a more just and equal post-apartheid society that is at the core of South African public law. Everywhere, but especially in South Africa, the protection of constitutional rights necessarily frames the meaning of statutes.
With this background, it is perhaps understandable why one who looks abroad would start questioning whether Chevron makes sense. If we stand alone in deferring to agencies’ interpretations under Chevron, are we really right to do so? And, indeed, this is exactly the kind of comparative intuition that Justice Gorsuch relied on in his opinion in Buffington that invoked global practices. He said that the lack of comparative precedent weakens Chevron’s foundations in and of itself.  
But, the contributions to this symposium clearly illustrate that the asymmetry that Justice Gorsuch has identified dissipates very quickly once one takes a more serious look. And, as these contributions suggest, if one wants to engage seriously in comparative law, there is simply no substitute for taking a deeper look.
Part of our critique of the shallowness of the reasoning underlying Justice Gorsuch’s invocation of comparative law should already be evident from our references to the posts concerning Canada and South Africa. In the former, the Supreme Court largely insists on the quality of the government’s reason-giving as a condition for deference rather than on ambiguity or vagueness per se. In the latter, deference is buttressed by a keen judicial emphasis on assuring that interpretive decisions align with the country’s (“transformative”) constitutional principles. Chevron can’t really be equated with the deferential regimes in polities transitioning from an authoritarian past.
But the fact that the asymmetry isn’t really all that it appears to be at first sight also applies with similar force to jurisdictions where deference isn’t explicitly recognized. This is so because those systems differ from the United States along six crucial dimensions:
  • The way systems apply or even understand the distinction between “law” and “policy or politics,” and the range of justiciable issues that come before the courts,
  • Nations’ divergent constitutional structures, including the parliamentary/presidential divide and nations’ distinctive ways of organizing their judiciaries,
  • The existence of differences in both the scope and substance of constitutional protections that nations provide for positive socioeconomic rights,
  • Constitutional norms or statutory provisions that mandate the procedures for promulgating administrative rules with legal force,
  • Judicial protocols for interpreting statutory language that differs across jurisdictions, and finally
  • To differences in countries’ politics and culture, broadly understood.
Start with the first dimension. As the contributions to the symposium show, several countries’ judiciaries categorically assign legal interpretation to themselves because, in contrast to the United States, they draw a much sharper distinction between law, on the one hand, and “policy” or “politics,” on the other. Interpreting the former is the exclusive responsibility of the courts; the latter is outside of their purview. Yet, many administrative law issues, in practice, are a mixture of law, fact, and policy. Thus, courts can insist both that they do not defer to administrative interpretation of statutory terms and at the same time accept the way the government implements the law. In other words, the courts defer to the legislature’s decision to use statutory terms that are open to interpretation by government officials.
Second, the government’s constitutional structure provides a set of key background conditions. Many of the countries represented in this symposium (England, Canada, Germany, South Africa, India, and Australia) are parliamentary systems. But, as Boughey reminds us in her contribution, in parliamentary systems the executive and legislature are “fused” rather than tightly separated. And this matters greatly for the question of deference and why it doesn’t appear to the same extent in these other systems. For one thing, this fusion makes it easier for the government to respond to erroneous judicial interpretations (reached without deference) by legislative fixes. In a presidential system, such as the U.S., such fixes are much more difficult, making judicial deference more justified. For another, judicial review of administration is potentially more important in parliamentary systems than it is in presidential ones in another key way. It “compensates” for the relative lack of institutional contestation in the legislative process (a point that Boughey emphasizes in her contribution when she mentions that in parliamentary systems the government controls much of the legislative agenda and writes most of the statutes).
France and Brazil are, of course, presidential systems. But they differ from the United States in important respects, which also help explain why something like Chevron has not emerged there. France has both an elected president and a prime minister appointed by the president and confirmed by the parliament. Unlike parliamentary systems, the strong president stays in office even if his party or coalition is subject to a vote of no confidence. In Brazil, the president has independent power similar to the U.S. president. However, unlike the U.S., the legislatures do not provide a powerful counterweight in either country; thus, the courts serve as important additional constraints. As in the parliamentary cases, neither Brazil or France has an APA that requires notice and comment procedures for executive rulemaking. Here, the explanation is not the unity of executive and the legislature, but the weakness of parliament and its internal divisions. Brazil, as Ari Sundfeld and Gabriel note, has been influenced by French public law, but it is now increasingly copying developments in U.S. public law, including the creation of independent agencies, including deference to their policy choices. Nevertheless, the fact remains that the Brazilian legislature is divided into a multitude of parties and is not a strong check on the president.
The presidential v. parliamentary divide is not the only structural constitutional difference of interest, however. Some of the countries represented have a judicial system to adjudicate administrative law disputes that differs from the unitary U.S. system. In France, as Fairgrieve and Lichère mention, and as Vincent Martenet moreover highlights, there is strong separation between administrative law adjudication and adjudication in other fields of law. In France and other polities worldwide, administrative law disputes come before administrative courts headed by a Conseil d’Etat that applies principles of administrative law. In Germany, as Kamradt and Ruffert emphasize, administrative law disputes also are heard within a separate system of administrative courts. This difference in judicial organization and perception can also help to explain distinctive features of public law in France or in Germany, including why deference Chevron style hasn’t emerged there. Such courts have a much higher level of systematic specialization in adjudicating administrative law disputes than generalist courts in the common law tradition have—making the need for deference in such systems to be much less called for.
The third axis of difference is a constitutional text that provides for the protection and enforcement of positive socioeconomic rights. These rights are very clearly a feature of the Brazilian and South African constitutions, promulgated as part of a democratic transition from an authoritarian system (military rule in Brazil and apartheid in South Africa). These documents include provisions protecting a right to public health, education, and social services (among other things). Germany fits into this category, as well. Its constitution, the Grundgesetz, has been in place since soon after the end of World War II and begins with a long catalogue of rights some of which are positive or protective in nature and thus require substantial public spending to bring to life. The reality of strong positive constitutional rights, which the U.S. currently lacks (certainly at the federal level), also provides important context that can explain why the emergence of interpretive deference has not emerged. In countries committed to positive rights, legal cases seeking to assure these rights have been a major source of judicial activism. Lacking other routes into the courts (or to influence the government more broadly), the plaintiffs are mostly individuals or specific communities seeking benefits. These cases inject the judiciary into national budgetary debates. In some cases, the courts have shown little deference to government spending decisions on social services, seeing themselves as primarily in charge of enforcing, sometimes strongly, these positive elements of constitutionalism.
This recruitment of courts to the cause of positive rights and positive constitutionalism more broadly also suggests that the lack of Chevron deference would have quite different consequences in other countries compared with the US. As we have suggested, in other countries, the lack of Chevron allows courts to intervene to encourage more governmental protection and activity. It creates the possibility for more governmental regulation and interventionism—which is exactly what socioeconomic rights are in large part about; how government’s are not doing enough. So, for example, as Ari and Gabriel argue, Brazilian courts have rejected deference in large part to further the protection of socio-economic rights to social benefits or health. As Quinot assesses the South African case, courts there have sidestepped deference especially in domains where courts have felt that the administration could do more to advance South Africa’s transformative constitutionalist goals—such as eradicating social and material inequality. And as Vakil mentions, Indian courts have eschewed deference in large part to engage in a positive project of “good governance.” In the United States, getting rid of Chevron deference is not likely to have the same effect. Rather than leading courts to engage in more proactive enforcement of positive obligations on government to act and provide services for better health, protection of the environment, and other rights for material equality, the elimination of Chevron would likely trigger judicial efforts to restrict government regulation.
Fourth, and to return to an issue we alluded to earlier, the jurisdictions represented here diverge in the procedures used by the public administration when it makes policy under delegated authority. Indeed, although there appears to be a global trend toward the enactment of framework statutes such as the APA, not all countries have jumped on the bandwagon. As Vakil illustrates, India is an important example of a country that lacks a framework APA-style statute, though there are others, including countries represented in this symposium (e.g., England and Australia). But, importantly, even those countries that did enact framework administrative law statutes, have not necessarily endorsed the same procedures relied on in the US: namely, notice-and-comment rulemaking. For example, as Quinot shows with respect to South Africa (a country that has a framework administrative law statute known as PAJA), and as Martenet discusses broadly with respect to both Europe and Canada, the U.S. notice-and-comment procedure is not systematically required or widely used elsewhere. Most general policies are developed through political processes, which are largely internal to the executive branch and sometimes subject to legislative scrutiny. When other countries outside the U.S. draw on something like a public notice-and-comment process, they do so voluntarily or when legally required by particular, domain-specific, legislation. We think that the absence of wide notice-and-comment processes clearly influences the debate over Chevron: namely, it seems to make much more sense to reject Chevron in a system that doesn’t rely on notice-and-comment procedures compared to a system that does. If notice-and-comment does not exist, more robust, non-deferential judicial review on questions of statutory interpretation compensates somewhat for the lack of public participation and reason-giving in the policymaking process.
Fifth, another difference that the various contributions to the symposium highlight concerns the methods that judiciaries use to interpret statutes. Chevron works quite well with the more textualist tendencies that have been increasingly embraced by U.S. courts, given its two-step framework and the way that deference is keyed to questions about whether or not statutory ambiguity exists in a way that gives interpretive leeway to the administration. But, other countries do not embrace anything similar to our own increasingly invoked textualism. Instead of proudly announcing that “we’re all textualists today,” other jurisdictions are much more eclectic in the way they interpret statutes. Fisher, for example, forcefully shows how courts in both England, with no written constitution, and Australia, with one, are not woodenly textualist but take a much more contextual approach that defies crisp theorization or doctrinal formulation. And Daly in his discussion of Canadian law also mentions that the judiciary looks beyond the text and refers quite openly to context and purpose. This also helps explain why we have Chevron and others do not.
Finally, and most broadly, some of the contributions emphasize differences between the U.S. and the other jurisdictions anchored in overall culture or politics. For instance, in his discussion of Canada, Daly highlights how American hostility to public administration is utterly foreign in Canada. As he says, in Canada there are “few who question the legitimacy of the administrative state.” And arguments that may appear bizarre (“off the wall,” as Jack Balkin calls them) to our own ears according to which a robust public administration is constitutionally mandatory are quite forceful in Canada (and likely also in the countries of most of the other contributors). A similar political and cultural embrace of administrative governance through law is also implicit in Boughey’s contribution when she says that the lack of deference in Australia has not “rendered the Australian administrative state incapable of performing its function.” Both France and Germany, similarly, have strong civil service traditions that differ in important ways but unite in giving considerable respect to the professional public administration.
To summarize our argument so far, it is a mistake to conclude that the reality of no Chevron abroad implies something meaningful about the relationship between administrative rulemaking and statutory interpretation in the U.S. Although the U.S. is in some sense an outlier, the contributions vividly show that many factors help to account for the divergence, as well as to justify it. These factors include constitutional structure, the organization of the judiciary, differences in administrative procedures, differences in interpretive methodologies, the reality of positive constitutional rights abroad, and, most broadly, differences in history, culture, and politics that exist between jurisdictions.
But we actually think that the symposium helps show that the flaw in invoking comparative law to undermine Chevron is meaningful in yet another way. As the contributions demonstrate, even if Chevron does not have a precise analogy elsewhere, all judiciaries inevitably defer to the administration on some of their exercises of discretion. This is, of course, most clear in Canada and South Africa, which, as Daly and Quinot show, accept the idea of interpretive deference. But, as other contributions illustrate, this is also true for the countries that reject deference officially. For example, in some jurisdictions, deference enters administrative law under a different heading, as in Australia under the label of “judicial restraint”. In France, Fairgrieve and Lichère address the reality that, at least in technically complex matters, deference is recognized by the administrative courts. In Germany, Kamradt and Ruffert show that the Federal Constitutional Court has accepted deference beyond the traditional areas where the doctrine of “margin of appreciation” applies—namely, in cases of what they describe as “knowledge gaps.”
Occasionally, the symposium contributors argue that deference exists in their legal system, but more sub rosa. Thus, Vakil shows that, in spite of formal claims that judges in India have full control over interpretive matters, in practice, they provide strong de facto deference in technically complex matters. They do this through the flexible use of doctrinal standards that conventionally imply more rigorous judicial scrutiny in some cases and various evasive strategies (and sometimes political ones) in others to avoid deciding contentious cases that may be beyond the competence of judges. Similarly, in Brazil, Ari Sundfeld and Gabriel suggest that outside of the domain of socioeconomic rights, Brazilian courts, in practice, are quite deferential notwithstanding rhetoric to the contrary.
If this is not enough, the contributions to the symposium also emphasize that some countries may be considering expanding their deference regime, coming closer to a more explicit understanding that administrative agencies’ actions deserve greater respect than they currently receive. Sometimes this deferential expansion is expressed judicially, as in the case of Germany as Kamradt and Ruffert’s discussion of a recent Federal Constitutional Court case powerfully demonstrates. And Canada’s recent pronouncement of deference, in Vavilov, importantly strengthened the presumption of deference that existed before. However, sometimes the need for expanded deference is expressed in legal scholarship, not in judicial judgments. So, for instance, Boughey mentions that there are influential academic calls for Australian courts to accept more deference (or judicial restraint) in some types of cases (mainly those that involve strong reliance interests). Martenet’s contribution in this symposium could be understood in itself as a standalone academic intervention which calls for more deference by judiciaries in countries that have so far been reluctant to accept it, such as France. Indeed, Martenet defends in these systems what he calls a “contextual” or “nuanced” approach that more directly and openly appreciates the place of the executive’s superior expertise (possibly tailored to the processes used by agencies, including by distinguishing between rulemaking and adjudication).
In short, by invoking comparative law to undermine Chevron, Justice Gorsuch got it doubly wrong: first, by ignoring the fact that significant cross-national differences can account for the lack of Chevron abroad and help to explain why we have it here. And, second, by ignoring the fact that the subject of judicial deference to statutory interpretations is very much alive in judicial systems that are working to expand it in important ways rather than shrinking it. These developments indicate that deference has strong reasons supporting it, and illustrate powerfully how, given the limited capacity of courts, it is, in practice, unavoidable. Indeed, as we tried to summarize here, the judiciaries in all eight countries ultimately give considerable weight to administrative decisions that interpret statutory language to make policy, within “reasonable” bounds, even if they do so much more implicitly.
Our conclusion is that, at a minimum, it is irresponsible to use comparative law and the lack of global analogies to Chevron to simply undermine it. This is the negative lesson that comparative law can teach us. At the same time, we also want to make clear that comparative law has a more positive implications; that is, we believe that it can teach us more concrete lessons about the future of Chevron and the relationship between courts and executive policymaking. These lessons might be of use to the Court as it reconsiders Chevron deference in Loper. Or, if not for the Court itself, then at least it might be of use to the broader administrative law community.
We see two possibilities. One, contrary to Justice Gorsuch’s suggestion in Buffington, is that comparative law can support efforts to retain Chevron, not to get rid of it or to cut it back. Indeed, as the discussion up to this point suggests, comparative law implies that Chevron has firm justifications in the U.S. constitutional structure (presidentialism); in the reality of a generalist court system that adjudicates administrative law disputes in an enormous array of domains of governmental regulation; in the existence of the APA and the importance of notice-and-comment rulemaking as a central vehicle for executive branch rulemaking; in the formalistic (and textualist) tendencies in our law, that the Court itself breeds and maintains today; and in the lack of firm constitutional protections for positive rights. Furthermore, the judiciary itself needs to recognize its own limited ability and legitimacy as the reviewer of administrative policymaking choices. This is especially so given that SCOTUS is changing other tenets of administrative law to further shrink the space for administration—including especially by the rise of an expansive “major questions” doctrine and the possible revival of the non-delegation doctrine.
We do not think, however, that a defense of the status quo is the only possible future for U.S administrative law. Even from a point of view such as ours which is highly sympathetic to the administrative state and to a positive role for governmental regulation, Chevron itself, however interpreted, is not necessarily ideal. Indeed, we think there is something valuable in the approach to deference seen, for example, in Canada with its emphasis on reason-giving by the government rather than a more formalistic search for ambiguity. In other words, U.S. courts could go beyond the reason-giving required for APA rulemaking and examine the reasons given by other sorts of executive policymaking, and get rid of the often opaque divide between law and politics that Chevron deference now is understood to depend on. Here, the U.S. precedent that most clearly supports this move is, surprisingly perhaps, the Supreme Court case preventing President Trump from canceling the Deferred Action for Childhood Arrivals (DACA). The opinion cited the beneficiaries’ reliance interest as a reason to strike down DACA’s repeal that occurred without procedures to took account of that reliance. Similarly, Canadian law recognizes the importance of deference, but, at the same time, also permits courts to evaluate the quality of reasons or processes behind agencies’ interpretive choices, and to send agencies back to the drawing board if these reasons are unconvincing in the context at hand. In that way, the Canadian approach avoids the formalistic two-step process or an excessive focus on whether or not statutes are ambiguous or vague. That kind of regime, expressed in the DACA case and more evident in Canadian practice, strikes us as a worthy alternative to the current one created by Chevron.  
We end our concluding reflection on the fate of Chevron and comparative administrative law with thanks to Jack Balkin for agreeing to host this symposium on Balkinization. We could not think of a better platform to amplify the importance of comparative administrative law and to correct incidents of its misuse. And, of course, we thank as well our wonderful contributors, whose contributions here—and whose work more broadly—illustrate both how challenging it is to do good and responsible comparative law, but also how much we can learn from taking that challenge seriously.

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