Chevron Inside the Regulatory State: An Empirical Assessment

Abstract

For three decades, scholars (as well as courts and litigants) have written thousands of articles (and opinions and briefs) concerning the impact of the Chevron deference regime on judicial review of agency statutory interpretation. This should come as no surprise as Chevron is the most-cited administrative-law decision of all time. Little attention, however, has been paid to how Chevron and its progeny have actually shaped statutory interpretation inside the regulatory state. As part of the Fordham Law Review symposium Chevron at 30: Looking Back and Looking Forward, this Essay presents the findings of the first comprehensive empirical investigation into the effect of Chevron and related doctrines on how federal agencies interpret statutes they administer.

The Essay draws on a larger, 195-question survey of federal agency rule drafters that covered a variety of topics related to agency statutory interpretation. (The survey is available online at http://ssrn.com/abstract=2481631.) The author administered the survey during a five-month period in 2013 at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (Federal Communications Commission and Federal Reserve). Responses were received from 128 agency officials whose primary duties included statutory interpretation and rulemaking (for a 31% response rate). This Essay provides a new and important window into the role of Chevron and its progeny inside the regulatory state. Based on the findings presented in this Essay, it would not be an understatement to conclude that thirty years of Chevron have saturated the federal agency rulemaking process. The rule drafters surveyed overwhelmingly indicated familiarity with and use of Chevron and related doctrines in their statutory interpretation efforts. Moreover, two in five rule drafters surveyed agreed or strongly agreed — and another two in five somewhat agreed — that a federal agency is more aggressive in its interpretive efforts if it is confident that Chevron deference (as opposed to Skidmore deference or de novo review) applies.

Keywords: administrative law, Chevron, Skidmore, Mead, deference, delegation

JEL Classification: K23, K30