Searching for Chevron in Muddy Watters: The Roberts Court and Judicial Review of Agency Regulations

45 Pages Posted: 8 Mar 2010

See all articles by Ann Graham

Ann Graham

Hamline University School of Law

Date Written: October 8, 2008


In April 2007, the U.S. Supreme Court delivered its opinion in Watters v. Wachovia. The majority opinion did not invoke the classic administrative law analysis prescribed by the Two-Step Chevron Doctrine, which for more than twenty years has been the foundation of determining judicial deference to agency regulations. The Watters case presented a golden opportunity to clarify the Chevron Doctrine. Instead of taking that expected path, the Supreme Court dodged Chevron altogether - raising serious issues about why and what may be next. This article identifies and examines ten Supreme Court decisions, in addition to the Watters case, which have been decided during the first two terms of the "Roberts Court." The question is whether these cases demonstrate a consistent standard by which the Roberts Court distinguishes a case of appropriate exercise of federal administrative authority to interpret statute from a case in which the courts should strike down an agency's statutory interpretation.

To answer that question, this article first outlines the Chevron Doctrine as generally understood at the end of the Rehnquist Court era and the beginning of the Roberts Court. This includes highlighting disputed areas of the doctrine that could benefit from Supreme Court clarification. The second step is to analyze the Watters opinion itself. Third, to put the Watters case in perspective, I review ten other cases in which the Roberts Court examined a federal agency interpretation of statute. This case review yields conclusions about the Roberts Court's track record on judicial review of agency interpretation. Finally, I consider the implications for federal government agencies and their interaction with the courts in the future. Because legal outcomes frequently depend on the analytical framework selected, lawyers need to know the most current model to use in analyzing whether agency interpretations of statute will stand or fall.

Keywords: banking law, OCC, administrative law, Chevron, judicial review, Roberts Court, federal agency

JEL Classification: K23

Suggested Citation

Graham, Ann, Searching for Chevron in Muddy Watters: The Roberts Court and Judicial Review of Agency Regulations (October 8, 2008). Administrative Law Review, Vol. 60, No. 1, 2008, Available at SSRN:

Ann Graham (Contact Author)

Hamline University School of Law ( email )

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Saint Paul, MN 55104-1237
United States
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