Footnotes (342)



Chevron's Mistake

Lisa Schultz Bressman

Vanderbilt University - Law School

November, 25 2008

Duke Law Journal, Forthcoming
Harvard Public Law Working Paper No. 08-55

Chevron U.S.A. Inc. v. Natural Resources Defense Council asks courts to determine whether Congress has delegated to administrative agencies the authority to resolve questions about the meaning of statutes that those agencies implement, but the decision does not give courts the tools for providing a proper answer. Chevron directs courts to construe statutory text by applying the traditional theories of statutory interpretation - whether intentionalism, purposivism, or textualism - and to infer a delegation of agency interpretive authority only if they fail to find a relatively specific meaning. But the traditional theories, despite their differences, all invite courts to construe statutory text as if Congress intended that text to have a relatively specific meaning. The presumption of a specific meaning does not match the reality of how Congress designs regulatory statutes. Congress is more likely to eschew specificity in favor of agency delegation under certain circumstances - for example, if an issue is complex and if legislators can monitor subsequent agency interpretations through administrative procedures. Although Chevron recognizes such delegating factors, it fails to sufficiently credit them. Even United States v. Mead Corp., which makes delegation the key question, falls short. This Article imagines what interpretive theory would look like for regulatory statutes if it actually incorporated realistic assumptions about legislative behavior. The theory would engage factors such as the complexity of the issue and the existence of administrative procedures as indications of interpretive delegation more satisfactorily than existing law does. In the process, it would produce a better role for courts in overseeing the delegation of authority to agencies.

Number of Pages in PDF File: 58

Keywords: Chevron, Mead, Zuni, statutory interpretation, textualism, intentionalism, purposivism, positive political theory, accountability, expertise, arbitrary, preemption, canons of construction, nondelegation, delegation

Open PDF in Browser Download This Paper

Date posted: November 26, 2008  

Suggested Citation

Bressman, Lisa Schultz, Chevron's Mistake (November, 25 2008). Duke Law Journal, Forthcoming; Harvard Public Law Working Paper No. 08-55. Available at SSRN: https://ssrn.com/abstract=1307072

Contact Information

Lisa Schultz Bressman (Contact Author)
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
615-343-6132 (Phone)
615-322-6631 (Fax)

Feedback to SSRN

Paper statistics
Abstract Views: 915
Downloads: 178
Download Rank: 133,893
Footnotes:  342