Congress frequently delegates to agencies, and a host of Supreme Court decisions have articulated tests for determining what level of deference courts should give to agency interpretations of their statutory directives. Courts have historically undertaken these analyses in the context of a single agency. Congressional authorization of joint rulemaking authority is more complicated, however, and the traditional frameworks for review are inadequate.
When Congress delegates authority to multiple agencies, courts should review the agencies' rules with heightened deference. The traditional framework for judicial review of agency rules is ill equipped when rules are promulgated by multiple coordinated agencies. The prevalence of this type of delegation in recent legislation underscores the need to reconsider the framework under which courts review multiagency rules. For instance, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank Act") delegates broad authority to multiple agencies to promulgate rules jointly and in consultation with one another. One particularly contentious provision of the Dodd-Frank Act delegates authority to the Treasury Department, the Federal Reserve Board, the Comptroller of the Currency, the Federal Deposit Insurance Company, and the Securities and Exchange Commission to implement the "Volcker Rule" by issuing joint rules. Given the lengthy delays and contentious issues discussed during the notice-and-comment period, the Volcker Rule itself is sure to generate a substantial volume of litigation. The recent issuance of the final rule will likely bring to light unresolved issues in judicial review of multiagency rules.
Multiple-Agency Delegations & One-Agency Chevron,
67 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol67/iss1/5