Todd S. Aagaard · February 2009
77 GEO. WASH. L. REV. 366 (2009)
This Article examines factual premises of statutory interpretation in cases reviewing administrative agency action. It proposes an approach that would better integrate the treatment of such factual premises into the overall structure of administrative law. Judicial interpretation of statutes administered by agencies follows the well-known Chevron framework, which construes statutory ambiguity as an implicit delegation of primary interpretive authority to the agency charged with implementing the statute. The Chevron framework has not been applied, however, to the factual premises of statutory interpretation, despite the pervasiveness of such premises in legal reasoning. Courts frequently encounter questions of statutory interpretation that depend on underlying factual background, context, and implications. When they do, however, courts tend not to follow the Chevron framework. Instead, courts assume that they retain the authority to decide factual premises and, it follows, authority to answer questions of statutory interpretation that depend on factual premises. This is especially problematic because courts often lack the information or expertise necessary to assess these underlying facts. Consequently, often courts fail to understand the implications of their interpretive options.
This Article proposes a new approach to premise facts in agency review cases. In particular, when courts encounter a question of statutory interpretation that depends on a factual premise, courts should recognize that the statute itself does not answer the precise question; under the Chevron framework, primary interpretive authority therefore rests with the administrative agency. This means that, among other things, agencies are not bound by prior judicial precedent interpreting statutes based on factual premises, and that agencies have the authority to reconsider such premise facts—and the statutory interpretation based on those facts—in subsequent proceedings. This reconsideration process would allow agencies to bring their superior information-gathering and -analyzing capacity to bear on premise facts, thereby improving statutory interpretation.
