The D.C. Circuit's use of the Chevron test: constructing a positive theory of judicial obedience and disobedience

Article Abstract:

The relationship between the Supreme Court and the District of Columbia (DC) Circuit can be analyzed by means of the latter's application of the Supreme Court's Chevron test. The DC Circuit Applied Chevron in an ambivalent way and this can be attributed to two factors. The Supreme Court gave unclear instructions to reviewing courts, a problem of inter-court communication. The DC Circuit had a history of resisting Supreme Court efforts to bring about greater deference on its part and could perpetuate this by incremental changes in its application of the Chevron test.

Appellate courts

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The irresistible force meets the immovable object: estoppel remedies for an agency's violation of its own regulations or other misconduct

Article Abstract:

The immunity of federal administrative agencies from estoppel remedies does not accord with public law governing administrative agencies and their judicial review. This dilemma can be solved using dicta from the Supreme Court decision of Lyng v Payne. Private parties should first have to seek a waiver whenever the agency can waive the legal provision which the private parties want to estop the enforcement of. Refusals of this waiver should be reviewable by the courts. When waiver is not possible, the Due Process clause can be used to seek relief.

Estoppel

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Regulatory discretion: another view

Article Abstract:

The discretion of administrative agencies needs to be controlled by the rule-making process because rule-making is the only way to make sure that regulatory enforcement in a large and complex society remains fair. The alternative of allowing bureaucrats to decide questions as they arise appears no better. Policy-makers should also be aware that public perceptions of administrative agencies and the government in general may be skewed by interactions with the IRS, which are invariably unrewarding.

United States, Analysis, Public opinion, Industry regulations, Government regulation of business, Trade regulation, Administrative agencies, Government agencies

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