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The Brand X Liberation: Doing Away with Chevron’s Second Step as Well as Other Doctrines of Deference

Claire Kelly

Brooklyn Law School

August 9, 2009

UC Davis Law Review, Vol. 44, No. 1, 2010
Brooklyn Law School, Legal Studies Paper No. 198

This paper argues that the Court’s decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services has cleared the path to discard the various doctrines of deference courts use to review agency interpretations and replace them with a single interpretive rule followed by arbitrary and capricious review. Courts have justified deference to: reasonable agency interpretations of ambiguous statutes where the agency employed its lawmaking powers (Chevron USA v. Natural Resources Defense Council); persuasive agency interpretations where the agency acted in some less formal way (Skidmore v. Swift & Co.); or even agency interpretations of their own ambiguous regulations (Auer v. Robbins). The most far reaching doctrine, Chevron has spurred countless debates. Courts and commentators have approached Chevron in two subtlety distinct ways, often at the same time. First, using the Deference Approach courts finding an ambiguity would defer to an agency interpretation so long as that interpretation was reasonable. Second, the Acceptance Approach required courts finding an ambiguity to envision whether the agency interpretation fell into the range of possible choices delegated to the agency by Congress and, if so, simply to accept the reasonable choice. Brand X confronted one of the few differences in these approaches: the effect of stare decisis when a court interpreted the statute prior to an agency interpretation worthy of Chevron. Although Brand X itself continued to employ rhetoric from both approaches, it is best justified, given its holding, under the Acceptance Approach. There are several important implications of Brand X’s endorsement of the Acceptance Approach. First, Brand X assigns an interpretive role to the courts to identify a zone of discretion afforded by Congress to the agency to make law and set policy. This zone includes both the substantive choices that the agency can make and how it must make them. Second, once the court has performed that task, then a reasonableness inquiry under Step Two of Chevron is not needed nor permitted. Courts can and should review the agency’s procedures for reaching its choice using the arbitrary and capricious standard of review. Finally, courts’ institutional mandate to identify a zone of agency lawmaking that relates to both substance and form renders other doctrines of deference indefensible. Discarding these various doctrines would: better focus both courts and agencies on their tasks; resolve some of the outstanding disputes concerning those tasks; eliminate pernicious vagueness that is too easily used to fudge analysis; and still maintain a clear, limited, deferential standard of review.

Number of Pages in PDF File: 71

Keywords: Administrative Law, Chevron, Brand X, Skidmore, Deference, Judicial Review, Agency Interpretations, Arbitrary and Capricious

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Date posted: August 9, 2010 ; Last revised: September 20, 2010

Suggested Citation

Kelly, Claire, The Brand X Liberation: Doing Away with Chevron’s Second Step as Well as Other Doctrines of Deference (August 9, 2009). UC Davis Law Review, Vol. 44, No. 1, 2010; Brooklyn Law School, Legal Studies Paper No. 198. Available at SSRN: https://ssrn.com/abstract=1656011 or http://dx.doi.org/10.2139/ssrn.1656011

Contact Information

Claire Kelly (Contact Author)
Brooklyn Law School ( email )
250 Joralemon Street
Brooklyn, NY 11201
United States

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