Thomas W. Merrill
Columbia University - Law School
Kristin E. Hickman
University of Minnesota - Twin Cities - School of Law
Georgetown Law Journal, Vol. 89, No. 4, 833
As the two-step Chevron approach to determining when courts should defer to agency interpretations of statutes has expanded in influence, questions about when the Chevron doctrine applies have proliferated. This article identifies fourteen questions about Chevron's domain that remain unresolved. The article argues that two background principles are important in answering these questions, each suggesting that Chevron has a relatively narrow domain. First, there are two deference doctrines - mandatory deference as recognized in Chevron, and discretionary deference as reflected in Skidmore - and Skidmore deference is always available as a fallback when Chevron does not apply. Second, Chevron deference rests most plausibly on implied congressional intent to delegate primary interpretational authority to an agency, and hence the scope of Chevron deference is subject to ultimate control by Congress. These two background principles lead in turn to three more specific operational principles: (1) agencies are entitled to Chevron deference when Congress has authorized them to make decisions that bind persons outside the agency with the force of law; (2) an agency interpretation is entitled to Chevron deference only insofar as it is rendered in a format having the force of law; and (3) Chevron deference does not apply if the statutory circumstances suggest that Congress had a clear intent to the contrary. The article concludes by showing how these operational principles can be used to provide principled answers to each of the fourteen questions about Chevron's domain that remain unanswered.
Reprinted with permission of the publisher, Georgetown Law Journal © 2001.
Number of Pages in PDF File: 89
Date posted: December 5, 2001 ; Last revised: July 24, 2013