Narrowing Chevron’s Domain

by Kristin E. Hickman & Aaron L. Nielson

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Abstract

Chevron deference has become increasingly controversial. Some Justices on the Supreme Court have stated that they would overrule Chevron , and others have urged that it be curtailed. If Chevron were merely modified rather than overturned, it is unclear what that modified Chevron would look like. This Article argues that the time has come to narrow Chevron ’s domain by limiting Chevron deference to interpretations announced in rulemaking and not those announced in adjudication.

Under the classic formulation of Chevron , a court should defer to an agency’s reasonable interpretation of ambiguous statutory language. This formulation is grounded in the notion that Congress, at least implicitly, signals a preference for agency rather than judicial decisionmaking when it delegates broad policymaking discretion as part of charging an agency with implementing and administering a statute. In United States v. Mead Corp., the Supreme Court began defining what has come to be known as Chevron ’s domain—holding that Congress did not intend courts to defer to every agency resolution of statutory ambiguity, but rather only to those articulated in agency actions that carry legal force and thus reflect the exercise of delegated power. As a consequence of the Mead Court’s analysis, courts typically defer under the Chevron standard to interpretations offered in notice-and-comment rulemakings and in formal adjudications, and apply the less deferential Skidmore standard in reviewing those advanced through less formal formats like interpretative rules and policy statements. Meanwhile, interpretations announced via informal adjudications represent a gray area for Mead’s analysis.

With the benefit of hindsight, we believe that Mead did not go far enough in curtailing Chevron ’s reach. Applying Chevron to interpretations announced through adjudication has proven problematic in practice and has fueled a great deal of the anti- Chevron criticism. Meanwhile, Chevron ’s claim to stare decisis in the context of adjudications is surprisingly weak. Using a novel dataset of cases, this Article shows that the Supreme Court has applied Chevron only rarely in evaluating agency adjudications. We submit that this relative dearth of precedent is best explained by the fact that Chevron makes the most conceptual sense when applied to agency rulemakings. Accordingly, if the Court is looking for a way to address deference short of eliminating it, the soundest way to revisit Chevron is by narrowing its domain to exclude most if not all agency adjudications.

Narrowing Chevron’s Domain

by Kristin E. Hickman & Aaron L. Nielson

Click here for a PDF file of this article

Abstract

Chevron deference has become increasingly controversial. Some Justices on the Supreme Court have stated that they would overrule Chevron , and others have urged that it be curtailed. If Chevron were merely modified rather than overturned, it is unclear what that modified Chevron would look like. This Article argues that the time has come to narrow Chevron ’s domain by limiting Chevron deference to interpretations announced in rulemaking and not those announced in adjudication.

Under the classic formulation of Chevron , a court should defer to an agency’s reasonable interpretation of ambiguous statutory language. This formulation is grounded in the notion that Congress, at least implicitly, signals a preference for agency rather than judicial decisionmaking when it delegates broad policymaking discretion as part of charging an agency with implementing and administering a statute. In United States v. Mead Corp., the Supreme Court began defining what has come to be known as Chevron ’s domain—holding that Congress did not intend courts to defer to every agency resolution of statutory ambiguity, but rather only to those articulated in agency actions that carry legal force and thus reflect the exercise of delegated power. As a consequence of the Mead Court’s analysis, courts typically defer under the Chevron standard to interpretations offered in notice-and-comment rulemakings and in formal adjudications, and apply the less deferential Skidmore standard in reviewing those advanced through less formal formats like interpretative rules and policy statements. Meanwhile, interpretations announced via informal adjudications represent a gray area for Mead’s analysis.

With the benefit of hindsight, we believe that Mead did not go far enough in curtailing Chevron ’s reach. Applying Chevron to interpretations announced through adjudication has proven problematic in practice and has fueled a great deal of the anti- Chevron criticism. Meanwhile, Chevron ’s claim to stare decisis in the context of adjudications is surprisingly weak. Using a novel dataset of cases, this Article shows that the Supreme Court has applied Chevron only rarely in evaluating agency adjudications. We submit that this relative dearth of precedent is best explained by the fact that Chevron makes the most conceptual sense when applied to agency rulemakings. Accordingly, if the Court is looking for a way to address deference short of eliminating it, the soundest way to revisit Chevron is by narrowing its domain to exclude most if not all agency adjudications.