Alternative agency response to a plurality SCOTUS opinion

New on SSRN: "Agencies Interpreting Courts Interpreting Statutes: The Deference Conundrum of a Divided Supreme Court" by Robin Kundis Craig (Florida State). Abstract:

Plurality decisions from the U.S. Supreme Court demand interpretation, especially because they tend to occur when the Court faces important but divisive legal issues. Most courts, agencies, and scholars have assumed that federal agencies are in no better position than the lower federal courts when confronted with a potentially precedential Supreme Court plurality decision - that is, that the agency must construe the Justices’ various opinions in search of a controlling rationale. In so doing, however, the agency eschews any claim to Chevron deference, because it is no longer implementing a statute pursuant to congressionally delegated authority. Instead, it is merely an agency interpreting a court.

This Article, in contrast, argues that pursuant to the Supreme Court’s 2005 decision in National Cable & Telecommunications Association v. Brand X Internet Services, federal agencies dealing with a Supreme Court plurality decision regarding either a statute that the agency implements or the agency’s prior interpretation of that statute have another option. In the right circumstances, these post-plurality agencies can invoke their original congressionally delegated authority to implement the statute and issue new regulations that should be entitled to Chevron deference. Post-plurality agencies thus face a deference conundrum: they can defer to a fractured Supreme Court decision at the expense of their own claims to interpretive authority, or they can - admittedly with some risk in the next round of judicial review - reclaim interpretive deference for themselves.

In assessing the existence of the deference conundrum, the exact character of the plurality decision is important. Thus, this Article includes a typology of Supreme Court plurality decisions involving agency-mediated statutes. When the Chevron/Brand X framework applies, however, it offers agencies the opportunity, and arguably duty, to eliminate the confusion and inconsistency that plurality decisions promote by issuing clarifying and nationally uniform rules.

"Wow!  I didn't see that one coming.  Highly recommended." - Larry Solum, Legal Theory Blog, February 18, 2011.