Administrative law Constitutional principles Judiciary Separation of powers

Deference on Questions of Law: Applying Chevron to Statutory Interpretation in Singapore | By Rennie Whang

Rennie Whang graduated with a J.D. from the Singapore Management University. She is grateful to Assistant Professor Kenny Chng and Managing Editor Daryl Yang for their advice and comments.

Cover image by Claire Anderson on Unsplash.


This note takes as its starting point an idea first mooted by VK Rajah SC in a 2016 lecture at the Singapore Management University: namely, whether a reasonableness review might apply to the interpretation of law in certain circumstances.[1] In particular, this note will analyse the practical possibility of applying such a standard of review to statutory interpretation in specific situations, as was the case in the Supreme Court of the United States (SCOTUS) decision of Chevron USA Inc v Natural Resources Defence Council Inc (Chevron).[2] This note elaborates on the content of the doctrine, before discussing two potentially problematic aspects of applying Chevron deference to the Singapore context.[3] Overall, it is considered that the doctrine is generally appropriate for Singapore, with a qualification on its reasonableness test.  

Content and Underlying Principle of the Doctrine

In Chevron, the SCOTUS had held that where a statute is silent or ambiguous on a specific issue and Congress has not explicitly left the gap to the agency to fill,[4] it is presumed Congress has implicitly so delegated;[5] and a court cannot substitute its own construction for a “reasonable interpretation” by the agency.[6]  This deferential attitude towards Executive interpretations was justified on the basis that it and not the courts possess “full understanding” of the statutory policies;[7] and it would be “entirely appropriate” for the Executive, who are accountable to the people, to make the requisite policy choices.[8]  Chevron deference thus regards the resolution of statutory ambiguity as a matter of policy judgment.[9]

The Chevron doctrine consists of a two-step test. First, a court reviewing an agency’s interpretation of a statute it administers[10] must ask whether Congress has “directly spoken to the precise question at issue.”[11] If Congress’ intent is clear, both the court and agency must give effect to that interpretation.[12] Second, if the court cannot find such clear intent, the court does not impose its own construction but defers to the agency’s interpretation, insofar as it is reasonable.[13] Chevron’s scope has been attenuated over time: it has been held, as a prior threshold, that Congress must have contemplated administrative action “with the effect of law”[14] for the agency’s interpretation to attract Chevron deference. Furthermore, for questions of great “economic and political magnitude,” the courts will be slow to conclude that Congress intended an implicit delegation to the Executive to fill the statutory gaps.[15] Within these limits though, Chevron deference may be understood as “an exercise of delegated rulemaking authority.”[16]

Practical Implications

As a preliminary point, it may be questioned how the doctrine fits with the prevailing purposive approach to statutory interpretation.[17] The doctrine may be broadly in line with section 9A of the Interpretation Act, insofar as the list of extraneous material that the court may consider pursuant to section 9A(3) of the Interpretation Act is said to be non-exhaustive.[18] Thus, an Executive interpretation of an ambiguous statute it administers can qualify as material which may be used to assist in ascertaining statutory meaning. However, as an Executive interpretation which receives Chevron deference is not properly seen as a guide to judicial ascertainment of a correct reading of statute, the doctrine does not quite fit with the orthodox purposive approach.

As such, the analysis of whether a statute ought to be conferred Chevron deference would take place after the court has, pursuant to the first of three steps to statutory interpretation laid out in Attorney-General v Ting Choon Meng,[19] found that the provision is ambiguous or obscure on its face per section 9A(2)(b)(i) of the Interpretation Act; or considers the ordinary meaning — in light of the underlying object and purpose of the written law — absurd or unreasonable per section 9A(2)(b)(ii) of the Act. In such instances, provided the requirements for Chevron are met; the purposive approach recedes, and the reasonableness test under Chevron takes over.

A.             Deference on Scope of Executive Jurisdiction

First, it may be problematic that Chevron deference “consistently” applies where an agency adopts a statutory construction relating to its own jurisdiction, essentially deciding on the scope of its statutory authority.[20] In City of Arlington v Federal Communications Commission (Arlington), Justice Scalia opined that there should not be an “arbitrary and undefinable category of agency decision-making” — that is, “jurisdictional” — which would fall outside Chevron and not be accorded deference; and the central question was “whether the statutory text forecloses the agency’s assertion of authority”.[21] Where the statute was ambiguous, it was the “end of the matter” if the agency’s answer was based on a permissible statutory construction.[22]

This might seem intuitively objectionable, given the assertion by the Court of Appeal (“CA”) in Tan Seet Eng v Attorney-General (Tan Seet Eng) that the question of the Executive’s scope of power as conferred by the Legislature is “centrally one for the Judiciary.”[23] Yet, the recent Singapore cases on jurisdictional questions reveal that Chevron deference in this regard is probably palatable. For example, it has been noted that the CA’s obiter view on ouster clauses in Nagaenthran a/l K Dharmalingam v PP (“Nagaenthran (CA)”) may represent a shift from the problematic language of jurisdiction altogether.[24] That is, rather than endorse the style of reasoning in Anisminic v Foreign Compensation Commission to the effect that any error of law by an administrative authority would take it out of jurisdiction,[25] the CA viewed the ouster doctrine as engaging a different jurisprudential issue, viz, potential violations of Article 93 of the Singapore Constitution and the principle of the separation of powers.[26]

Thus, the rejection of the jurisdictional/non-jurisdictional distinction in Arlington is consistent with a similar direction here, apart from having the benefit of simplicity.[27] Indeed, if the legal policy behind the jurisdictional/non-jurisdictional distinction is that the courts are meant to “keep all governmental bodies within the bounds of their true powers,”[28] then Chevron comports with this policy: the courts are still able to “conclusively determine”[29] the limits of these powers, with the check of reasonableness.

B. The Relevant Standard of Reasonableness

Second, the high threshold in Singapore for finding unreasonableness may not be apt for the Chevron doctrine. The Wednesbury standard is understood here as “so outrageously defiant of ‘logic’ and ‘propriety’” that plainly, no reasonable person would or could have come to that decision.[30] In contrast, in the US, it is not quite clear what Chevron’sreasonableness test entails:[31] in the absence of a coherently articulated approach, the courts have variously engaged in textualist,[32] purposive,[33] and arbitrary-and-capricious review.[34]  Although the high threshold for unreasonableness here is so framed to prevent judges from engaging in a review of the merits,[35] should Chevron be adopted, it might be troubling that our conception of reasonableness “does not require reasons to be stated.”[36] While judicial review ought not be a “surrogate political process” undermining the separation of powers;[37] in the Singapore context of “nearly complete fusion of executive and legislative powers,”[38] it may be preferable to take a leaf from the Canadian context: to view reasonableness (here, for the purposes of Chevron) as concerned with “justification, transparency and intelligibility within the decision-making process.”[39]

Conclusion

For Singapore, Chevron presents a potentially appropriate judicial solution to issues of institutional competence and democratic legitimacy. It is also consistent with the Judiciary’s view of its role in policing the legality of power wielded by other government branches.[40] However, it is possible that further substantiation of Chevron’s reasonableness test may be desirable, as against the risk of excessive deference.[41]


[1] VK Rajah SC, Attorney-General of Singapore (as he then was), “Judicial Review — Politics, Policy, and the Separation of Powers,” Guest Lecture at SMU Constitutional and Administrative Law Course (24 March 2016) (2016 SMU Lecture); as noted in Eugene Tan, “‘The Notion of a Subjective or Unfettered Discretion is Contrary to the Rule of Law’: Judicial Review of Administrative Action in Singapore” in Deference to the Administration in Judicial Review (Guobin Zhu, ed) (Springer, 2019), pp 366-391 (“Tan, “Review of Administrative Action in Singapore””).

[2] (1984) 467 U.S. 837 (Chevron). 

[3] As defined by Brian Foley, deference describes the situation when a decision-maker chooses not to reach an authoritative independent decision on a matter, but “accepts as authoritative” the decision of another body in respect of the matter: Deference and the Presumption of Constitutionality (Institute of Public Administration, 2008) at p 6. Chevron deference in turn is a matter of “acknowledg(ing) the authority of an expert executive agency to decide between reasonable, competing interpretations of an ambiguous statutory provision”: Janina Boughey, “Re-Evaluating the Doctrine of Deference in Administrative Law” (2017) 45 Fed. L. Rev 597 at 603.

[4] In which case the agency’s interpretation is to be given “controlling weight” unless “arbitrary, capricious, or manifestly contrary to the statute”: (1984) 467 U.S. 837 at 844.

[5] See, eg, Chevronat 844; United States v Mead Corp (2001) 533 U.S. 218 (Mead Corp)at 229, as noted by Jonathan R. Siegel, “The Constitutional Case for Chevron Deference” (2018) 71(3) Vand. L. Rev 937.

[6] Chevron at 844.

[7] Chevron at 844.

[8] Chevron at 865-866.

[9] Antonin Scalia J, “Judicial Deference to Administrative Interpretations of Law” (1989) Duke L.J. 511.

[10] It has been held that the Executive must, by way of “administering” the statute, have a specific responsibility for that statute: Wagner Seed Co. v Bush (1990) 946 F. 2d 918.This note uses the terms “agency” and “Executive” interchangeably.

[11] Chevron at 842.   

[12] Chevron at 843.

[13] Chevron at 843-844.

[14] Such as when Congress provides for a more formal administrative procedure that “tends to foster the fairness and deliberation” that should be the basis for a declaration of such force: Mead Corp at 229; as noted by Cass R. Sunstein, “Chevron Step Zero” (2006) 92(2) Va. L. Rev 187 (“Sunstein, “Step Zero””) at 225.

[15] Such as whether the Food and Drug Administration had the authority under the Food, Drug, and Cosmetic Act to regulate tobacco products in Food and Drug Administration v Brown & Williamson Tobacco Corporation (2000) 529 U.S. 120 ; and the Internal Revenue Service’s interpretation of Affordable Care Act on whether tax credits were available on Federal Exchanges in King v Burwell (2015) 135 S. Ct. 2480; as noted by Sunstein, Step Zero at 240-241.  

[16] Sunstein, Step Zero at 213, citing Mead Corp at 226-227.

[17] Section 9A of the Interpretation Act (Cap 1, 2002 Rev Ed); Attorney-General v Ting Choon Meng [2017] 1 SLR 373 (Ting Choon Meng) at [59]; Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 at [37].

[18] ACS Computer Pte Ltd v Rubina Watch Co (Pte) Ltd [1997] 1 SLR(R) 1006 at [19]; as noted by Goh Yihan, “The Interpretation of the Singapore Constitution: Towards a unified approach to interpreting legal documents” in Constitutional Interpretation in Singapore: Theory and Practice (Jaclyn L. Neo, ed) (Routledge, 2017) ch 10 at pp 270-271; Ting Choon Meng at [63].

[19] Ting Choon Meng at [59].

[20] Per Scalia J on behalf of the majority, City of Arlington v Federal Communications Commission (2013) 569 U.S. 290 (Arlington) at 301.

[21] Arlington at 300 and 307.

[22] Arlington at 307.

[23] [2016] 1 SLR 779at [134]; similarly at [98]. Emphasis added.

[24] [2019] 2 SLR 216; see generally Kenny Chng, “Reconsidering Ouster Clauses in Singapore Administrative Law” (2020) 136 L.Q.R. 40 (“Chng, “Ouster Clauses””).

[25] [1969] 2 A.C. 147 at 171 and 210; In re Racal Communications Ltd [1981] A.C. 375 at 383; O’Reilly v Mackman [1983] 2 A.C. 237 at 278; R v Hull University Visitor, ex parte Page [1993] A.C. 682 at 701.

[26] Nagaenthran (CA) at [74]; as noted by Chng, “Ouster Clauses” at 42-43.

[27] As noted by Paul Craig, “three hundred years of UK legal history” attests to the thorniness of such a distinction, and maintaining this divide would have exacerbated difficulties in applying the Chevron test. According to the majority in Arlington, “the salient question was always whether the agency had gone beyond what Congress had permitted it to do”: “Judicial Review of Questions of Law: A Comparative Perspective” in Comparative Administrative Law (Rose-Ackerman, Lindseth, and Emerson eds) (Edward Elgar Publishing, 2nd Ed, 2017) (Comparative Administrative Law) ch 23 at p 399.

[28] Sir William Wade and Christopher Forsyth, Administrative Law (Oxford University Press, 11th Ed, 2014) (“Wade and Forsyth, Administrative Law) at pp 218-219.

[29] Ibid.

[30] Per VK Rajah J (as he then was) in Chee Siok Chin v Minister v Home Affairs [2006] 1 SLR(R) 582 (Chee Siok Chin) at [94]; Pang Chen Suan v Commissioner for Labour [2007] 4 SLR(R) 557 at [14].

[31] In Chevron, the US Supreme Court held that the relevant agency’s interpretation was reasonable and should be deferred to as “the regulatory scheme is technical and complex,” the agency had considered the matter in a “detailed and reasoned fashion,” and the decision involved “reconciling conflicting policies” (at 865).

[32] Focusing on the text of the statute and its meaning within the overall statute and other related statutes, and possibly referring to canons of statutory interpretation. See, eg, Utility Air Regulatory Group v Environmental Protection Agency (2014) 573 U.S. 302.

[33] In Michigan v EPA (2015) 135 S. Ct. 2699 at 2710, the US Supreme Court considered the “whole point of having a separate provision” about power plants, namely in order to treat them differently from other stationary sources; as noted by Kent Barnett and Christopher J. Walker, “Chevron Step Two’s Domain” (2018) Notre Dame L. Rev 1441 (“Barnett and Walker, “Step Two’s Domain””)..”  

[34] As under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Thus, courts may express concerns over an agency’s lack of reasoned decision-making, such as failure to provide reasons, or not providing a sufficient reason for departing from its earlier interpretations: Barnett and Walker, “Step Two’s Domain.” See, eg, Catskill Mountains Chapter of Trout Unlimited, Inc v EPA (Catskill III) (2017) 846 F.3d 492. It has been noted that the arbitrary-and-capricious review resembles Wednesbury unreasonableness: Wade and Forsyth, Administrative Law at p 295.

[35] Lord Woolf, Jowell, Donnelly, and Hare, De Smith’s Judicial Review (Sweet & Maxwell, 8th Ed, 2018)at [11.016].

[36] Per VK Rajah J (as he then was) in Chee Siok Chin at [93], endorsing Sir William Wade and Christopher Forsyth’s statement in the 9th Edition (2004) of Administrative Law at p 365. Similarly, the High Court in Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority affirmed that there is no general rule at common law that reasons must be given for administrative decisions: [2014] 1 SLR 1047.

[37] G.L. Peiris, “Wednesbury Unreasonableness: The Expanding Canvas” (1987) 46(1) C.L.J 53.

[38] Thio Li-Ann, A Treatise on Singapore Constitutional Law (Academy Publishing, 2012) at [03.021], citing Walter Bagehot, The English Constitution vol 10 (Cosimo, 2007).

[39] Dunsmuir v New Brunswick [2008] 1 S.C.R 190 at [47]; as noted by Rajah SC, 2016 SMU Lecture ; Tan, “Review of Administrative Action in Singapore.”   

[40] See, eg, Lee Hsien Loong v Review Publishing [2007] 2 SLR(R) 453 at [98]; Tan Seet Eng at [98]; Nagaenthran (CA) at [73]; Thio Li-ann, “The Theory and Practice of Judicial Review of Administrative Action in Singapore: Trends and Perspectives” in SAL Conference 2011: Developments in Singapore Law between 2006 and 2010: Trends and Perspectives (Yeo Tiong Min, Hans Tjio, and  Tang Hang Wu eds) (Academy Publishing, 2011) at [37]; Jaclyn L. Neo, “Autonomy, Deference and Control: Judicial Doctrine and Facets of Separation of Powers in Singapore” (2018) 5 JICL 461 (“Neo, “Autonomy, Deference and Control”) at 477-478.

[41] In the sense of deference as submission, an “extreme” form by which the Judiciary identifies areas entirely for the decision of the non-judicial government branches; or the suspension by courts of their own judgments in favour of that of another constitutional actor: Neo, “Autonomy, Deference and Control” at 465-466.

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