Chevron’s Interstitial Steps

54 Pages Posted: 24 Oct 2017 Last revised: 28 Feb 2019

See all articles by Cary Coglianese

Cary Coglianese

University of Pennsylvania Carey Law School

Date Written: 2017


The Chevron doctrine’s apparent simplicity has long captivated judges, lawyers, and scholars. According to the standard formulation, Chevron involves just two straightforward steps: (1) Is a statute clear? (2) If not, is the agency’s interpretation of the statute reasonable? Despite the influence of this two-step framework, Chevron has come under fire in recent years. Some critics bemoan what they perceive as the Supreme Court’s incoherent application of the Chevron framework over time. Others argue that Chevron’s second step, which calls for courts to defer to reasonable agency interpretations of ambiguous statutory provisions, amounts to an abdication of judicial responsibility. Yet as this Foreword shows, both criticisms draw on a mistaken understanding of Chevron. Despite the conventional view that Chevron analysis has only two steps, the reality is that it has always comprised a series of steps constituting a veritable Chevron staircase. If a statute is unclear at Step 1, a court must confront a number of important legal questions — Chevron’s “Interstitial Steps” — before considering deference at Step 2. After all, the legal justification for Chevron deference — legislative delegation of authority to the agency to resolve statutory ambiguity — requires judicial analysis of whether the statute can properly be construed as having made such a delegation. Recognizing the Interstitial Steps embedded in Chevron analysis not only reveals that the Supreme Court has been more consistent in its application of the framework than is generally acknowledged, but such recognition also rebuts the mistaken notion that Chevron automatically requires judicial deference on the mere showing of statutory ambiguity. The full Chevron staircase — Step 1, Interstitial Steps, and Step 2 — reveals how much work Chevron demands of judges and it makes clear that, far from abdicating their responsibility, judges actually fulfill their duty to uphold the law when they defer to agency interpretations at Step 2. The staircase also affords a basis for seeing why a popular alternative Chevron “Step 0” framework is misplaced and why, contrary to yet another scholarly account, the Chevron doctrine cannot be meaningfully collapsed into a single step. Properly understood, the Chevron doctrine, with its Interstitial Steps, ensures that courts act responsibly by answering crucial legal questions at every step of the way.

Keywords: Administrative law, statutory interpretation, judicial review, jurisprudence, separation of powers, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., Supreme Court of the United States, SCOTUS, deference, delegation, agency discretion, rulemaking, regulation

Suggested Citation

Coglianese, Cary, Chevron’s Interstitial Steps (2017). George Washington Law Review, Vol. 85, p. 1339, 2017, U of Penn Law School, Public Law Research Paper No. 17-43, Available at SSRN:

Cary Coglianese (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-6867 (Phone)


Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics