Chevron Step Zero

60 Pages Posted: 11 Jun 2005  

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Abstract

The most famous case in administrative law, Chevron U.S.A. v. Natural Resources Defense Council, Inc., has come to be seen as a counter-Marbury, or even a McCulloch v. Maryland, for the administrative state. But in the last period, new debates have broken out over Chevron Step Zero - the initial inquiry into whether Chevron applies at all. These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference question. In the last decade, Justice Breyer's case-by-case view has enjoyed significant victories. Two trilogies of cases - one explicitly directed to the Step Zero question, another implicitly so directed - suggest that the Chevron framework may not apply (a) to agency decisions not preceded by formal procedures and (b) to agency decisions that involve large-scale questions about agency authority. Both of these trilogies threaten to unsettle the Chevron framework, and to do so in a way that produces unnecessary complexity for judicial review and damaging results for regulatory law. These problems can be reduced through two steps. First, courts should adopt a broader understanding of Chevron's scope. Second, courts should acknowledge that the argument for Chevron deference is strengthened, not weakened, when major questions of statutory structure are involved.

Keywords: Chevron U.S.A. v. Natural Resources Defense Council, Inc.

Suggested Citation

Sunstein, Cass R., Chevron Step Zero. Virginia Law Review, Vol. 92, No. 2, April 2006. Available at SSRN: https://ssrn.com/abstract=739129

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

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Cambridge, MA 02138
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617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
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