Narrowing Chevron’s Domain

Abstract

Chevron deference has become increasingly controversial. Some Justices on the Supreme Court have stated that they would overrule Chevron, and others have urged that it be curtailed. Unfortunately, neither the Court nor the academy has offered a clear idea what a modified Chevron would look like. This Article fills the void, arguing that the time has come to narrow Chevron’s domain by limiting Chevron deference to interpretations announced in rulemaking and not those announced in adjudication.

Under the classic formulation of Chevron, a court should defer to an agency’s reasonable interpretation of ambiguous statutory language. The basis for that formulation comes from the notion that Congress contemplates such deference, at least implicitly, when it delegates broad policymaking discretion as part of charging agencies with implementing and administering statutes. In United States v. Mead Corp., the Supreme Court began defining what has come to be known as Chevron’s domain—holding that Congress did not intend courts to defer to every agency resolution of statutory ambiguity, but rather only to those articulated in agency actions that carry legal force, thereby reflecting the exercise of congressionally-delegated power. As a consequence of the Mead Court’s analysis, courts typically defer under the Chevron standard to interpretations offered in notice-and-comment rulemakings and in formal adjudications, and apply the less deferential Skidmore standard in reviewing those advanced through less formal formats like interpretative rules and policy statements. Meanwhile, interpretations announced via informal adjudications represent a gray area for Mead’s analysis.

Mead is right in principle, but particularly with the benefit of hindsight, it did not go far enough in curtailing Chevron’s reach. Applying Chevron to interpretations announced through adjudication has proven problematic in practice and has fueled a great deal of the anti-Chevron criticism. Meanwhile, Chevron’s claim to stare decisis in the context of adjudications is surprisingly weak. For all of its rhetoric, the Supreme Court actually has applied Chevron only rarely in evaluating agency adjudications. Chevron is a doctrine concerned most obviously with agency rulemakings, with its applicability to agency adjudications an undertheorized and infrequent afterthought. If Chevron is limited to notice-and-comment rulemaking, Chevron’s opponents will have much less reason to seek its wholesale abandonment. Accordingly, the soundest way to revisit Chevron is by narrowing its domain.

Keywords: Chevron, Mead, Skidmore, administrative law, rulemaking, deference