Policy: Stare decisis for Chevron interpretations?

New on SSRN: "Why Agency Interpretations of Ambiguous Statutes Should be Subject to Stare Decisis" by Harold (Hank) Greenberg (Clerk, 11th Cir.), __ Tenn. L. Rev. ___ (2011). Abstract:

Agencies’ interpretations of ambiguous statutes under Chevron are not subject to a rule of stare decisis. Agencies may interpret and later reinterpret ambiguous statutes without settling the statute’s meaning. This article shows that this regime permits agencies to “interpret” law in legally unprincipled and inconsistent ways and prevents administrative statutes from meaningfully constraining agency policymaking. This article concludes that a rule of stare decisis should govern agencies’ interpretations of ambiguous statutes just as it governs judicial holdings. Taking seriously Chevron’s recognition of agencies’ power to interpret law, the conventional justifications for stare decisis—separation of powers, legislative supremacy, and the consistency of regulatory schemes—apply with equal force to agencies as to courts.

It's a sound argument, but I have one reservation. In a sprawling executive branch, the president needs some ability to redirect agencies. There are already gigaohms of resistance to change in agency behavior, especially to change that implicates reallocation of resources. On a change of administration, one would expect changes in interpretation as new political appointees take charge. Dissatisfaction with agency interpretations may be why there is a change of administration. Fixing agency interpretations might shift more practical power from the president to the civil service, and somewhat contrarily force interpretive decisions to higher levels of decision makers thereby slowing decisions down.

However, regulated entities need stability and consistency in agency interpretation. Mr. Greenberg's idea of imposing the principles of stare decisis on Chevron interpretations is attractive and worth further study. EMM