May Chevron Be Waived?

71 Stan. L. Rev. Online 183 (2019)

14 Pages Posted: 9 Dec 2018 Last revised: 24 Jan 2019

Date Written: January 22, 2019


Suppose that a private party sues an agency, arguing that the agency’s regulation exceeds its statutory authority. Normally, the court would review the party’s challenge under the well-known Chevron doctrine, which directs judges to defer to reasonable agency interpretations of ambiguous statutory texts. But what happens if either the private party or agency doesn’t make an argument under Chevron? Perhaps the agency doesn’t defend its action by invoking deference, or perhaps the private party doesn’t challenge whether Chevron should apply.

Since Chevron was decided over thirty years ago, most courts faced with this scenario have said that the party or agency has “waived” Chevron. In other words, judges assume that an agency interpretation does or does not warrant deference without independently inquiring into the correctness of that conclusion. More recently, however, some courts have disagreed, reasoning that the Chevron framework is not subject to waiver. Indeed, just this September, the Eleventh Circuit identified a circuit split on the issue, and the D.C. Circuit issued a decision that arguably creates an intra-circuit split on the question. This Essay argues that courts should not allow either private parties or agencies to waive Chevron. Chevron waiver conflicts with the well-settled principle that litigants may not waive legal propositions, violates basic administrative law doctrines, undermines separation-of-powers principles by interfering with the allocation of interpretive authority between the different branches.

Keywords: Chevron, deference, waiver, administrative law, civil procedure

JEL Classification: K3

Suggested Citation

Durling, James and West, E. Garrett, May Chevron Be Waived? (January 22, 2019). 71 Stan. L. Rev. Online 183 (2019), Available at SSRN:

E. Garrett West

Independent ( email )

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