Chevron Step Two's Domain

34 Pages Posted: 9 Dec 2017 Last revised: 16 Jun 2018

See all articles by Kent H. Barnett

Kent H. Barnett

University of Georgia School of Law

Christopher J. Walker

University of Michigan Law School

Date Written: December 4, 2017


An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Essay explores how circuit courts have applied Chevron step two to invalidate agency statutory interpretations. In doing so, it identifies three separate approaches that merit further theoretical and doctrinal development: (1) a more-searching textualist or structuralist inquiry into the statutory ambiguity in light of the whole statute; (2) an enhanced purposivist or contextualist inquiry; and (3) an inquiry into an agency’s reasoned-decisionmaking similar to arbitrary-and-capricious review under the Administrative Procedure Act.

Keywords: administrative law, deference, judicial review, Chevron

Suggested Citation

Barnett, Kent Harris and Walker, Christopher J., Chevron Step Two's Domain (December 4, 2017). Notre Dame Law Review, Vol. 93, pp. 1441-1473, 2018, Ohio State Public Law Working Paper No. 430, Available at SSRN:

Kent Harris Barnett

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

Christopher J. Walker (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States


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