Last week, Aaron Nielson and I posted on SSRN our forthcoming article, Narrowing Chevron‘s Domain, 70 Duke L.J. (forthcoming 2021). Skeptical that the Supreme Court actually will overturn Chevron deference (its rhetoric notwithstanding), we wanted to think carefully about how the Court might curtail Chevron‘s scope to mitigate some of the doctrine’s excesses. Our proposal is for the Court to remove most if not all agency adjudications from Chevron‘s domain. Chevron is a doctrine adopted for and oriented toward agency rulemaking. Extending Chevron deference to adjudications raises a host of problems that are nowhere near so present when applying it to rulemaking. The article is available on SSRN here, and the full abstract is as follows:
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. Unfortunately, neither the Court nor the academy has offered a clear idea of what a modified Chevron would look like. This Article fills the void, arguing 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. The basis for that formulation comes from the notion that Congress contemplates such deference, at least implicitly, when it delegates broad policymaking discretion as part of charging agencies with implementing and administering statutes. 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, thereby reflecting the exercise of congressionally-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.
Mead is right in principle, but particularly with the benefit of hindsight, it 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. For all of its rhetoric, the Supreme Court actually has applied Chevron only rarely in evaluating agency adjudications. Chevron is a doctrine concerned most obviously with agency rulemakings, with its applicability to agency adjudications an undertheorized and infrequent afterthought. If Chevron is limited to notice-and-comment rulemaking, Chevron‘s opponents will have much less reason to seek its wholesale abandonment. Accordingly, the soundest way to revisit Chevron is by narrowing its domain.
*In posting the article, Aaron and I inadvertently coined a new term: deferender — combining deference and defender. My friend and co-author on another project, Nick Bednar, really liked the term as representing a defender of judicial deference. So, no doubt coming soon to the Marvel Cinematic Universe and a theater near you: “The Deferenders” starring Anne Hathaway and Jason Bateman, with Bill Murray as Chevron and Maggie Smith as Justice Ruth Bader Ginsburg.