Unambiguous Legislative Intent
The requirement that the delegation basis translates as unambiguously as possible the intent of the legislator is to a certain extent inspired by the Chevron case, more specifically by the so-called ‘Chevron step one’. In this case, the US Supreme Court was requested to review the Environmental Protection Agency’s interpretation of the term ‘stationary source’ in the context of the Clean Air Act. This case refers to the limits of judicial review of agencies’ decisions. Nonetheless, the suggested test should be used in this context not necessarily to determine whether agency interpretations should be deferred but rather as a guideline to avoid misunderstandings as to the formulation of the goals of an experiment and the underlying legislative intent.
Considering the statutory text, statutory structure, legislative purpose and history, ‘step one of the Chevron test’ analyzes whether ‘Congress has directly spoken to the precise question at issue’. In order to avoid misinterpretations by agencies or other levels of the executive, it is essential that the legislative intent is unequivocal. Textualism plays here a decisive role. If the statute is unambiguous as to the legislative intent, then it is not necessary to proceed to step two, which refers to whether the agency’s interpretation is reasonable and permissible. The Chevron test implies that although Congress delegates the competence to interpret to agencies, it is always the former that must decide on the fundamental questions, namely, whether to regulate or not and what to leave to the agency’s margin of appreciation (see above). In the case of experimental regulations, this is concretized by formulating unequivocal goals that leave no margin of doubt as to the legislative intent.