Chevron's Consensus

55 Pages Posted: 27 Mar 2008 Last revised: 19 Nov 2008

Abstract

For nearly a quarter-century, federal courts have deferred to administrative agencies' statutory interpretations under the renowned Chevron doctrine. Despite Chevron's widespread appeal, its theoretical foundations remain contested. Judges and academics have debated whether Chevron rests on a theory of congressional delegation, administrative expertise, deliberative rationality, the executive branch's political responsiveness and accountability, or concerns for national regulatory uniformity. This Article challenges the terms of this longstanding debate by demonstrating that Chevron does not rest exclusively upon any of these competing rationales. Instead, Chevron forges a pragmatic consensus between several leading theories, none of which can properly be considered redundant. By embracing pluralism and practical wisdom in statutory interpretation, Chevron furnishes an enduring response to the fragmentation of contemporary legal and political theory.

In United States v. Mead Corporation, the Supreme Court appeared to abandon Chevron's consensus by endorsing congressional delegation as the touchstone for Chevron deference. By all accounts, Mead has sown confusion and discord in the circuit courts. What Mead's critics have failed to appreciate, however, is that the Supreme Court actually employs the congressional delegation theory instrumentally to sustain Chevron's consensus: Where agency decision-making processes satisfy all of the leading rationales for deference, the Court applies Chevron. Conversely, where any of the leading rationales for deference remains unsatisfied, the Court evaluates agency statutory interpretations under the residual Skidmore test.

The time has come to dismantle Mead's delegation fiction and expressly reconstruct Chevron's pluralist consensus as the definitive test for Chevron deference. By candidly reaffirming Chevron's consensus, the Supreme Court would clarify the scope of Chevron's domain and enhance judicial transparency and accountability in statutory interpretation.

Keywords: Chevron, administrative law, legislation, statutory interpretation, pluralism

Suggested Citation

Criddle, Evan J., Chevron's Consensus. Boston University Law Review, Vol. 88, 2008. Available at SSRN: https://ssrn.com/abstract=1112884

Evan J. Criddle (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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