jayman wrote:1. can anyone explain whether an issued order resulting from formal adjudication is subject to A&C/Hardlook review? I am unsure whether substantial evidence review strictly applies to the agencies findings of fact during the formal adjudicative process and then A&C / Hardlook gets applied to the agencies ultimate decision, i.e. the issued order.
2. is it correct to say that chevron simply applies when an agency interprets its enabling statute? does this allow an agency to determine its scope of authority under the statute?
(1) I think everything is subject to A&C review, right? But since it's a formal adjudication, someone challenging could challenge them on the substantial evidence standard which is a slightly less deferential standard to the agency, so they would challenge on that test. But then I guess you'd have to run the A&C test as well?
But the questions will be slightly different-- substantial evidence is concerned with whether there is sufficient evidence to justify the decision, and A&C is concerned with whether the agency decision makes sense in light of the principles and policies underlying the regulatory scheme at issue.
(2) I think that's correct. It does allow an agency to determine its scope of authority, subject to any constitutional issues like the nondelegation doctrine, which may lead the court to construe the statute more narrowly to avoid any potential delegation problems. Not sure if they would get any deference in their interpretation after an agency has interpreted narrowly, i'm guessing they probably would as long as they weren't pushing it back into the nondelegation issue again?
Of course, you could say that Congress unambiguously never intend that thus failing the agency interpretation at step 1 of Chevron, so the courts get to "interpret" what the scope of power is (I think).