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The Rest is Silence: 'Chevron' Deference, Agency Jurisdiction, and Statutory Silences


Nathan Alexander Sales


Syracuse University College of Law

Jonathan H. Adler


Case Western Reserve University School of Law; PERC - Property and Environment Research Center

October 12, 2009

University of Illinois Law Review, Vol. 2009, No. 5, pp. 1497-1565
George Mason Law & Economics Research Paper No. 08-46
Case Legal Studies Research Paper No. 8-20

Abstract:     
Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of jurisdictional questions that may arise in statutory interpretation. The article then surveys how the Supreme Court and lower federal courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court's Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence- and scope-of-power cases, but courts should continue to show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. We support our proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counterarguments to our proposal - particularly the potential difficulty in distinguishing between jurisdictional and non-jurisdictional questions - this article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.

Number of Pages in PDF File: 72

Keywords: 'Chevron USA, Inc. v. Natural Resources Defense Council', 467 U.S. 837, 843 (1984), 'Chevron' Doctrine, 'Chevron' deference, Agency jurisdiction, Administrative Law, Administrative Jurisdiction, Public Choice

JEL Classification: K23, K40

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Date posted: August 10, 2008 ; Last revised: April 13, 2012

Suggested Citation

Sales, Nathan Alexander and Adler, Jonathan H., The Rest is Silence: 'Chevron' Deference, Agency Jurisdiction, and Statutory Silences (October 12, 2009). University of Illinois Law Review, Vol. 2009, No. 5, pp. 1497-1565; George Mason Law & Economics Research Paper No. 08-46; Case Legal Studies Research Paper No. 8-20. Available at SSRN: http://ssrn.com/abstract=1213149

Contact Information

Nathan Alexander Sales (Contact Author)
Syracuse University College of Law ( email )
Syracuse, NY 13244-1030
United States
Jonathan H. Adler
Case Western Reserve University School of Law ( email )
11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-2535 (Phone)
216-368-2086 (Fax)
HOME PAGE: http://www.jhadler.net
PERC - Property and Environment Research Center
2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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