The Clear-Statement Chevron Canon

54 Pages Posted: 3 Dec 2016 Last revised: 20 Sep 2017

See all articles by Nicholas Bednar

Nicholas Bednar

Vanderbilt University, College of Arts and Science, Department of Political Science, Students; Independent

Date Written: November 14, 2016

Abstract

As Chevron has fallen into disfavor with some, judges and scholars have begun searching for alternative formulations of administrative law’s favorite deference doctrine. Some judges have embraced Matthew Stephenson and Adrian Vermeule’s One-Step Chevron. But One-Step Chevron’s theoretical foundations lack practical application.

This Article argues that judges can make One-Step Chevron workable by reframing it as a clear-statement rule: “Unless refuted by the clear language of the statute, a court must defer to an agency interpretation.” Scholars have long labelled Chevron as a “canon,” but have never framed Chevron as a substantive canon. Chevron works as a substantive canon without disturbing the traditional Chevron analysis. The Chevron Canon reforms the two-step deference doctrine using an interpretive tool familiar to all judges. This Article also resolves a longstanding dispute about the place of Chevron on the continuum of substantive canons. The Chevron Canon trumps tiebreaking canons, but succumbs to institutional clear-statement rules.

The Chevron Canon promotes simplicity and casts Chevron as a traditional tool of statutory interpretation. As judges reconsider Chevron, the Chevron Canon presents a more intuitive option than One-Step Chevron.

Keywords: Administrative Law, Chevron, Deference, Statutory Interpretation

Suggested Citation

Bednar, Nicholas, The Clear-Statement Chevron Canon (November 14, 2016). 66 DePaul L. Rev. 819 (2017). Available at SSRN: https://ssrn.com/abstract=2879959

Nicholas Bednar (Contact Author)

Vanderbilt University, College of Arts and Science, Department of Political Science, Students ( email )

VU Station B #351817
Nashville, TN 37235-1817
United States

HOME PAGE: http://https://www.vanderbilt.edu/political-science/bio/nicholas-bednar

Independent ( email )

No Address Available

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