How should courts review agency legal interpretations? The U.S. Supreme Court’s answer, known as Chevron1 deference, is that courts should defer to agencies’ reasonable interpretations of ambiguous statutes.2 But hostility to Chevron deference is at its zenith; the Court has implied its willingness to reconsider Chevron,3 and a majority of Justices have expressed skepticism of its reasoning.4 Off the Court, judicialists often favor replacing Chevron with de novo review so that courts, rather than agencies, decide questions of law.5 And on the other side, deferentialists admit Chevron is not operating optimally.6 But as responses to the problem of determining the standard for reviewing agency legal interpretations, both approaches suffer the same absolutism. Recently, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General)7 (CHRC), the Supreme Court of Canada took a more reserved approach to the problem, clarifying a framework based on a presumption of deference that can be rebutted if the circumstances so warrant. CHRC shows, particularly in one of its concurrences, how courts can escape the deferentialist-judicialist dichotomy by incorporating both interests into a single framework, suggesting an alternate way forward for the American doctrine as the Chevron era ends.
Canada’s Indian Act8 provides access to federal programs and benefits to people who qualify for “Indian” status according to criteria in the Act.9 Because these criteria do not necessarily align with Indigenous practices, some who consider themselves Indigenous do not qualify for status and are denied the benefits.10 In CHRC, two sets of applicants who were denied status brought claims before the Canadian Human Rights Tribunal11 — an administrative body created by the Canadian Human Rights Act12 (CHRA) to adjudicate discrimination complaints.13 The applicants argued that denying them status and its benefits constituted a “discriminatory practice in the provision of . . . services,” in violation of section 5 of the CHRA.14 The tribunal understood the claims to be attacking not a discriminatory provision of services under the Indian Act but rather the passing of the legislation itself.15 Yet the tribunal could only grant relief under CHRA’s prohibition on providing discriminatory “services” and, on the tribunal’s interpretation, the Indian Act’s status-conferral scheme did not constitute provision of a “service.”16 The tribunal therefore dismissed the complaints.17
On appeal, the Federal Court consolidated the cases and upheld the tribunal’s decision.18 The Federal Court of Appeal also dismissed the challenge. Using the framework for determining the standard of review of agency legal interpretations from the Supreme Court of Canada’s landmark Dunsmuir v. New Brunswick19 decision, it held that the appropriate standard of review for the tribunal’s interpretation of whether legislation was a “service” was reasonableness, and that the tribunal’s interpretation was reasonable.20
The Supreme Court of Canada affirmed.21 Writing for the majority, Justice Gascon22 began by clarifying the two-step framework laid out in Dunsmuir for determining which of the two available standards — “reasonableness”23 or “correctness”24 — will be used to review an agency’s decision. The first step is precedential: Has the standard of review for the question before the agency been settled in the case law?25 If so, the inquiry is over.26 If not, at the second step, the reasonableness standard presumptively applies to an agency’s interpretation of its home statute.27 However, this presumption can be rebutted in favor of correctness review in two ways: if the question falls into any of four “correctness categories” denoting types of questions warranting correctness review; or, alternatively, if the balance of several contextual factors shows legislative intent for correctness review to apply to that particular question.28
As case law had not settled the standard and the reasonableness presumption obtained, Justice Gascon proceeded to step two and held that none of the correctness categories rebutted the presumption. Of the four categories, only those on questions of jurisdiction and on questions that are both “of central importance to the legal system and outside the expertise of the decision maker” were relevant.29 Acknowledging the difficulty in identifying a true question of jurisdiction, Justice Gascon rejected the category on issues of jurisdiction because the question asked whether the tribunal could grant relief to the applicants, not whether it could hear discrimination complaints altogether.30 Nor was the question outside the tribunal’s expertise under the latter category: the tribunal existed to adjudicate CHRA complaints.31
With the categories rejected, Justice Gascon proceeded to the contextual analysis and similarly held that it did not rebut the reasonableness presumption.32 To avoid unnecessary complication, Justice Gascon cautioned that the contextual analysis should be “applied sparingly” and “limited to determinative factors that [collectively show] a clear legislative intent” for correctness to apply.33 Accordingly, Justice Gascon’s analysis was brief and dismissive of the four standard contextual factors — the presence of a privative clause, the tribunal’s expertise, the tribunal’s statutory purpose, and the nature of the question at issue.34 For Justice Gascon, all of these factors were either irrelevant or insufficient to indicate a legislative preference for correctness review.35
Having settled on reasonableness, Justice Gascon applied that standard and upheld the tribunal’s findings that the claims attacked the Indian Act itself and that legislation was not a “service” under CHRA section five.36
Justices Côté and Rowe jointly concurred in the judgment, agreeing that the tribunal’s decision should be upheld but disagreeing with the majority’s standard of review analysis.37 Whereas the majority considered the contextual analysis to be reserved for exceptional cases, the concurrence considered that analysis to be fundamental;38 the correctness categories were simply contextual analyses that had reliably warranted correctness review.39 Thus, the two tests were equally important and deserving of thorough consideration.40
Fully applying the contextual analysis led the concurrence to rebut the presumption of reasonableness.41 First, the lack of privative clause suggested that the legislature chose not to insulate the tribunal’s decisions from full judicial review.42 Second, other administrative bodies also had the expertise to interpret the CHRA, so deferring to the tribunal risked creating inconsistent human rights adjudications.43 Third, the question before the tribunal was a constitutional one regarding the agency’s purpose because it required deciding who could adjudicate challenges to legislation.44 Collectively, these factors indicated that the legislature intended for courts to answer the question.45
In the United States, the problem of selecting the standard for courts to use when reviewing agency legal interpretations generally sorts scholars into two camps: deferentialists prefer for courts to defer to agencies, whereas judicialists prefer for courts’ interpretations to control. But both are blind to the possibility that the other standard is preferable in some circumstances. By contrast, CHRC undertook a third approach: delaying determination of the standard until the balance of agency deference and judicial supremacy interests implicated by the specific question has become apparent. In particular, the contextual analysis, as emphasized by the CHRC concurrence, tailors the standard of review to the needs of the circumstances. This approach could help the Chevron debate escape the deferentialist-judicialist divide in which it is trapped.
The primary disagreement underlying the Chevron debate concerns whether agency deference or judicial supremacy is a more pressing interest. Chevron favors the former: at Step One, courts determine if Congress has spoken to the question at issue, defaulting to deference at Step Two only if the statute is silent or ambiguous and the agency’s interpretation is reasonable.46 The Chevron doctrine presumes that Congress intended for the agency to resolve statutory ambiguities,47 even when courts have supplied alternate interpretations.48 But the assumption of congressional intent is a fiction;49 little evidence supports it50 and, judicialists argue, it conflicts with the Administrative Procedure Act.51 Moreover, the assumption undermines courts’ constitutional authority “to say what the law is.”52 Respecting the separation of powers therefore seems to require replacing Chevron with de novo review.53
However, neither the congressional intent nor the constitutional authority argument inherently favors judicialists. Underlying Chevron was a judgment that Congress considers paramount the agency’s expertise and need for flexibility in policymaking.54 And Chevron put Congress on notice that courts will defer to the agency. The separation of powers argument can also cut against de novo review: Chevron allows elected members of the executive branch, rather than unelected judges, to pursue policy preferences when interpreting statutes.55
Which set of concerns should triumph? The question itself is misplaced because it seeks to resolve the deferentialist-judicialist dichotomy absolutely. Neither approach defeats the other in the abstract, so the approach that triumphs will oscillate according to judges’ policy preferences. To escape that oscillation, an alternative approach is necessary.
Instead of treating agency deference and judicial supremacy as dichotomous, the framework used in CHRC makes either approach available as necessary in the circumstances. The Chevron debate and CHRC ask the same question: Has the legislature delegated authority to interpret the statute to the agency? Under Chevron, the answer is yes, if the statute is ambiguous; under de novo review, the answer is no. By contrast, CHRC reservedly answers, it depends — not on ambiguity, but on interests implicated by the question itself. Whether a discriminatory practice violates section five of the CHRA is within the tribunal’s expertise as an arbitrator of human rights disputes,56 but whether a nonjudicial court can entertain challenges to legislation’s legality is not.57 In the former circumstance, the agency expertise interest is paramount, whereas combatting agency overreach and maintaining the constitutional structure become more important in the latter. The more pressing interest not only varies, then, but does so at the level of the question before the agency. It therefore cannot be determined in the abstract. Both Chevron and de novo miss this variance: when a statute is ambiguous, Chevron defers even if deference risks agency aggrandizement; de novo review ignores the relevance of agency expertise altogether. Taking either approach as absolute, courts will sometimes apply a standard incongruous with the needs underlying the question. By contrast, CHRC’s presumption of reasonableness minimizes incongruity because it can be rebutted, allowing courts to tailor the standard to the question.
The CHRC concurrence’s emphasis on the contextual analysis is particularly instructive in overcoming the deferentialist-judicialist divide. Rejecting the majority’s subordination of the contextual analysis, the concurrence understood the correctness categories as four circumstances in which the contextual analysis rebutted the reasonableness presumption.58 Checking if the categories apply is therefore a proxy for the full contextual analysis, not a replacement for it. Case law reinforces this concern. In Rogers Communication Inc. v. Society of Composers, Authors and Music Publishers of Canada,59 the Supreme Court of Canada rebutted Dunsmuir’s presumption of reasonableness with the contextual analysis when reviewing a rights complaint underlying the Copyright Board’s interpretation of the Copyright Act.60 Courts also hear rights challenges implicated by copyright claims, so if the Board received deference on a question of interpretation that implicated applicants’ rights then those claims would be reviewed differently based on whether the parties first brought them to a court or to the Board.61 Because of this “unusual statutory scheme under which the Board and the court may each have to consider the same legal question at first instance,” the interests implicated by the nature of the question were paramount, requiring correctness review.62 Not only would Chevron and de novo review have missed this nuance, but so too would the correctness categories. Only the contextual factors caught it, making the CHRC concurrence especially instructive in overcoming the deferentialist-judicialist divide.
One might challenge the concurrence’s theory as merely a totality of the circumstances test. Circumstantial standard of review analyses are not new. Critics of Chevron have long advocated for a return to an analysis like that of Skidmore v. Swift & Co.63 Under Skidmore, courts give varying deference based on an indefinite number of factors, including the “thoroughness evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.”64 But issues plague Skidmore: it precludes predicting how courts will review agency interpretations;65 and it permits unbounded judicial discretion, creating de novo review under the guise of “degrees of deference.”66 As such, even some agency skeptics advocate Chevron’s formalism67 and would likely criticize CHRC for suffering the same faults as Skidmore.
Yet the CHRC concurrence differs from Skidmore in two respects. First, the initial step in the CHRC framework is to follow the standard established in case law. Agencies can thereby rely on courts to treat like questions alike.68 Second, the concurrence’s contextual analysis, while more flexible than the categorical analysis, remained more restricted than Skidmore’s. The conurrence anchored the contextual inquiry on four factors, some entailing a yes-or-no answer, which led to only two possible standards. By contrast, Skidmore considers an indefinite number of factors, including “all those factors which give [the agency] power to persuade,”69 and results in an unspecified amount of deference.70 As such, the concurrence’s theory, though contextual, resists Skidmore’s fluidity and thereby avoids the absolutism of the deferentialist-judicialist divide without suffering the ordinary faults of such pragmatism.
The concurrence’s theory is not abstractly better than the American approach. Instead, the challenge is to create a workable test that satisfies the relevant interests as often as possible.71 Thus, the CHRC concurrence is less an improvement on the American doctrine and more a demonstration that the deferentialist-judicialist divide is not inevitable. And while translating the framework directly into the American context is neither possible nor desirable, its basic tenets are present in American administrative law. For example, the “major questions” doctrine, used as an exception to Chevron in King v. Burwell,72 could begin a framework based on categories of questions for which deference is inappropriate regardless of statutory ambiguity.73 Such a framework can escape the deferentialist-judicialist dichotomy by withholding standard selection until circumstantial interests have been balanced. As Chevron’s days dwindle, CHRC could help U.S. courts construct a new doctrine with which parties move “away from arguing about the tests and [get] back to arguing about the substantive merits of their case.”74