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Updating Deference: The Court's 2001-2002 Term Sows More Confusion About Chevron

Environmental Law Reporter, Vol. 32, No. 12

56 Pages Posted: 6 Jan 2003  

William S. Jordan III

University of Akron - School of Law


Well before the end of its second decade, Chevron doctrine is beginning to crumble. Chevron identified statutory ambiguity as the basis for applying a deferential standard of review to agency interpretations. Whatever its limitations, this principle was relatively clear. Gone were the multi-factor analyses of the pre-Chevron era. If the statute was ambiguous (a considerable battleground in itself), the court was to defer to agency authority. Put another way, a court had to find clarity in the statute in order to maintain control and avoid the limitations of the strong deference of Chevron Step 2.

This relatively clear delineation of authority began to blur over the last few years. First, Christensen v. Harris County confirmed that mere interpretive statements are not entitled to Chevron deference, only to respect. More important, U.S. v. Mead injected considerable uncertainty into Chevron analysis by holding that the availability of Chevron deference is a matter of legislative intent, to be determined, as Justice Scalia put it in dissent, by considering 'the totality of the circumstances.'

This article examines the development of Chevron doctrine during the Court's 2001-2002 term. Based largely upon Barnhart v. Walton and Utah v. Evans, Professor Jordan argues that the Court appears to be returning to its prior use of a multi-factor test to determine whether Chevron deference is available in a particular case. Some factors used by the Court seem relevant to a determination of whether Congress intended to delegate the particular decision to the agency. This would, at least, be consistent with the delegation theory that underlies Chevron doctrine. Other factors, however, do not appear relevant to whether Congress intended a delegation. They are comparable to the factors that have long been relevant under Skidmore analysis, which is a matter of respect, not delegation.

Professor Jordan also discerns a trend away from Chevron analysis as a distinct form of deference. He argues that statements in Utah v. Evans and Edelman v. Lynchburg College, on particular, suggest that a majority of the Court may no longer recognize Chevron's clear delineation between administrative and judicial authority. If Chevron represents only 'an additional, separate legal reason for deferring to certain agency determinations' it may devolve into merely another justification for a judicial decision, rather than a requirement to respect agency authority.

Keywords: Chevron, Skidmore, Mead, Barnhart, deference

JEL Classification: K23

Suggested Citation

Jordan III, William S., Updating Deference: The Court's 2001-2002 Term Sows More Confusion About Chevron. Environmental Law Reporter, Vol. 32, No. 12. Available at SSRN: or

William S. Jordan (Contact Author)

University of Akron - School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States
330-972-6751 (Phone)
330-258-2343 (Fax)

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