Chevron Deference: A Primer

When Congress delegates regulatory functions to an administrative agency, that agency’s ability to act is governed by the statutes that authorize it to carry out these delegated tasks. Accordingly, in the course of its work, an agency must interpret these statutory authorizations to determine what it is required to do and to ascertain the limits of its authority. The scope of agencies’ statutory authority is sometimes tested through litigation. When courts review challenges to agency actions, they give special consideration to agencies’ interpretations of the statutes they administer. Judicial review of such interpretations is governed by the two-step framework set forth in Chevron U.S.A. Inc., v. Natural Resources Defense Council.

The Chevron framework of review usually applies if Congress has given an agency the general authority to make rules with the force of law. If Chevron applies, a court asks at step one whether Congress directly addressed the precise issue before the court, using traditional tools of statutory construction. If the statute is clear on its face, the court must effectuate Congress’s stated intent. However, if the court concludes instead that a statute is silent or ambiguous with respect to the specific issue, the court proceeds to Chevron’s second step. At step two, courts defer to an agency’s reasonable interpretation of the statute.

Application of the Chevron doctrine in practice has become increasingly complex. Courts and scholars alike debate which types of agency interpretations are entitled to Chevron deference, what interpretive tools courts should use to determine whether a statute is clear or ambiguous, and how closely courts should scrutinize agency interpretations for reasonableness. A number of judges and legal commentators have even questioned whether Chevron should be overruled entirely. Moreover, Chevron is a judicially created doctrine that rests in large part upon a presumption about legislative intent, and Congress could modify the courts’ use of the doctrine by displacing this underlying presumption.

This report discusses the Chevron decision, explains the circumstances in which the Chevron doctrine applies, explores how courts apply the two steps of Chevron, and highlights some criticisms of the doctrine, with an eye towards the potential future of Chevron deference.

Chevron Deference: A Primer

September 19, 2017 (R44954)
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Summary

When Congress delegates regulatory functions to an administrative agency, that agency's ability to act is governed by the statutes that authorize it to carry out these delegated tasks. Accordingly, in the course of its work, an agency must interpret these statutory authorizations to determine what it is required to do and to ascertain the limits of its authority. The scope of agencies' statutory authority is sometimes tested through litigation. When courts review challenges to agency actions, they give special consideration to agencies' interpretations of the statutes they administer. Judicial review of such interpretations is governed by the two-step framework set forth in Chevron U.S.A. Inc., v. Natural Resources Defense Council.

The Chevron framework of review usually applies if Congress has given an agency the general authority to make rules with the force of law. If Chevron applies, a court asks at step one whether Congress directly addressed the precise issue before the court, using traditional tools of statutory construction. If the statute is clear on its face, the court must effectuate Congress's stated intent. However, if the court concludes instead that a statute is silent or ambiguous with respect to the specific issue, the court proceeds to Chevron's second step. At step two, courts defer to an agency's reasonable interpretation of the statute.

Application of the Chevron doctrine in practice has become increasingly complex. Courts and scholars alike debate which types of agency interpretations are entitled to Chevron deference, what interpretive tools courts should use to determine whether a statute is clear or ambiguous, and how closely courts should scrutinize agency interpretations for reasonableness. A number of judges and legal commentators have even questioned whether Chevron should be overruled entirely. Moreover, Chevron is a judicially created doctrine that rests in large part upon a presumption about legislative intent, and Congress could modify the courts' use of the doctrine by displacing this underlying presumption.

This report discusses the Chevron decision, explains the circumstances in which the Chevron doctrine applies, explores how courts apply the two steps of Chevron, and highlights some criticisms of the doctrine, with an eye towards the potential future of Chevron deference.


Chevron Deference: A Primer

Background

Congress has created numerous administrative agencies to implement and enforce delegated regulatory authority. Federal statutes define the scope and reach of agencies' power,1 granting them discretion to, for example, promulgate regulations,2 conduct adjudications,3 issue licenses,4 and impose sanctions for violations of the law.5 The Administrative Procedure Act (APA) confers upon the judiciary an important role in policing these statutory boundaries, directing federal courts to "set aside agency action" that is "not in accordance with law" or "in excess of statutory jurisdiction, authority, or limitations."6 Courts will thus invalidate an action that exceeds an agency's statutory authorization or otherwise violates the law. Of course, in exercising its statutory authorities, an agency necessarily must determine what the various statutes that govern its actions mean. This includes statutes the agency specifically is charged with administering as well as laws that apply broadly to all or most agencies.

As this report explains, when a court reviews an agency's interpretation of a statute it is charged with administering,7 the court will generally apply the two-step framework outlined by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council.8 Pursuant to that rubric, at step one, courts examine "whether Congress has directly spoken to the precise question at issue."9 If so, "that is the end of the matter" and courts must enforce the "unambiguously expressed intent of Congress."10 In the case of statutory silence or ambiguity, however, step two requires courts to defer to a reasonable agency interpretation of the statutory text, even if the court would have otherwise reached a contrary conclusion.11

This report discusses the Chevron decision, explains the circumstances in which the Chevron doctrine applies, explores how courts apply the two steps of Chevron, and highlights some criticisms of the doctrine, with an eye towards the potential future of Chevron deference.

What Is Chevron Deference?

The Chevron case itself arose out of a dispute over the proper interpretation of the Clean Air Act (CAA). The contested statutory provision required certain states to create permitting programs for "new or modified major stationary sources" that emitted air pollutants.12 In 1981, the Environmental Protection Agency (EPA) promulgated a regulation that defined "stationary source," as used in that statute, to include all pollution-emitting activities within a single "industrial grouping," 13 and thus let states "bubble," or group together, all emitting sources in a single plant for the purposes of assessing emissions.14 This allowed a facility to construct new pollution-emitting structures so long as the facility as a whole—that is, the "stationary source"—did not increase its emissions.15 The Natural Resources Defense Council (NRDC) filed a petition for judicial review, arguing that this definition of "stationary source" violated the CAA.16 The NRDC claimed that the text of the CAA required the EPA "to use a dual definition—if either a component of a plant, or the plant as a whole, emits over 100 tons of pollutant, it is a major stationary source."17

A unanimous Supreme Court disagreed and upheld the regulation, determining that the EPA's definition was "a permissible construction of the statute."18 The Court explained that when a court reviews an agency's interpretation of a statute it administers, it faces two questions:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.19

Applying this two-step inquiry to review the challenged EPA regulation, the Court first considered the text and structure of the CAA, along with the legislative history regarding the definition of "stationary source."20 The text of the statute did not "compel any given interpretation of the term 'source,'"21 and did not reveal Congress's "actual intent."22 The Justices concluded that the statutory text was broad, granting the EPA significant "power to regulate particular sources in order to effectuate the policies of the Act."23 The legislative history of the CAA was similarly "unilluminating."24 However, the ambiguous legislative history was "consistent with the view that the EPA should have broad discretion in implementing the policies of" the CAA.25 Ultimately, the Court decided that the EPA had "advanced a reasonable explanation" for determining that its definition of "source" advanced the policy concerns that had motivated the CAA's enactment,26 and upheld this "permissible construction."27

The Court gave three related reasons for deferring to the EPA: congressional delegation of authority, agency expertise, and political accountability.28 First, the Court invoked a judicial presumption about legislative intent, which has subsequently become one of the leading justifications for deferring to agencies under Chevron:29

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.... Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.30

In the view of the Court, because the statutory term "source" was ambiguous and could be read either to prohibit or to allow "bubbling,"31 Congress had implicitly delegated to the EPA the ability to choose any definition that was reasonably permitted by the statutory text.32 The statutory ambiguity constituted a limited delegation of interpretive authority from Congress, and the agency had acted within that delegation.33

Second, the Court cited the greater institutional competence of agencies, as compared to courts, to resolve the "policy battle" being waged by the litigants.34 The Court reasoned that, with its superior subject matter expertise, the EPA was better able to make policy choices that accommodated "manifestly competing interests" within a "technical and complex" regulatory scheme.35 Finally, the opinion of the Court also rested implicitly on concerns about the constitutional separation of powers.36 While judges should not be in the business of "reconcil[ing] competing political interests," the Court stated, it was "entirely appropriate for this political branch of the Government to make such policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities."37

Does Chevron Deference Apply?

An important threshold question for a court reviewing an agency's interpretation of a statute is whether Chevron deference should apply at all. As an initial matter, the Chevron framework of review is limited to agencies' interpretations of statutes they administer.38 Even when an agency is interpreting a statute that it administers, however, the Supreme Court has prescribed important limits on the types of agency statutory interpretations that qualify for Chevron deference. One crucial inquiry, sometimes referred to as Chevron "step zero," is whether Congress has delegated authority to the agency to speak with the force of law.39 This analysis often turns on the formality of the administrative procedures used in rendering a statutory interpretation. The Court has indicated that an agency's determination of the scope of its jurisdictional authority is entitled to Chevron deference in appropriate circumstances.40 Another situation where the Court has occasionally declined to follow Chevron occurs when an agency's interpretation implicates a question of major "economic and political significance."41 However, this "major questions" doctrine has been invoked in a somewhat ad hoc manner, leaving unclear exactly how this consideration fits into the Chevron framework.

Importantly, even if the Chevron framework of review does not apply, a court might still give some weight to an agency's interpretation of a statute.42 In the 2000 case of United States v. Mead Corp.,43 the Court explained that even when Chevron deference was inapplicable to an agency's interpretation, it might still merit some weight under the Court's pre-Chevron decision in Skidmore v. Swift & Co.44 Under Skidmore, when an agency leverages its expertise to interpret a "highly detailed" "regulatory scheme," a court may accord the agency's interpretation "a respect proportional to its 'power to persuade.'"45 In other words, a court applying Skidmore deference accords an agency's interpretation of a statute an amount of respect or weight that correlates with the strength of the agency's reasoning.46

Finally, when an agency interprets legal requirements that apply broadly across agencies, it is not operating pursuant to delegated interpretive authority to resolve ambiguities or relying on its particular expertise in implementing a statute, and the agency's interpretation is not afforded deference by a reviewing court.47 For instance, courts will review de novo, or without any deference at all,48 procedural provisions of the APA,49 the Freedom of Information Act,50 and the Constitution.51

How Did the Agency Arrive at Its Interpretation?

Determining whether Chevron deference applies to an agency's interpretation typically requires a court to examine whether Congress delegated authority to the agency to speak with the force of law in resolving statutory ambiguities or to fill statutory gaps. One important indicator of such a delegation is an agency's use of formal procedures in formulating the interpretation. As background, the APA requires agencies to follow various procedures when taking certain actions. For instance, agencies issuing legislative rules that carry the force of law generally must follow notice and comment procedures; and adjudications conducted "on the record" must apply formal court-like procedures.52 In contrast, non-binding agency actions, such as agency guidance documents, are exempt from such requirements. In Christensen v. Harris County, the Court ruled that nonbinding interpretations issued informally in agency opinion letters, "like [those] contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law," do not receive deference under Chevron.53 In contrast, the Court indicated, Chevron deference is appropriate for legally binding interpretations reached through more formal procedures, such as formal adjudications and notice-and-comment rulemaking.54

Likewise, in United States v. Mead Corp., the Court ruled that tariff classification rulings by the U.S. Customs Service were not entitled to Chevron deference because there was no indication that Congress intended those rulings "to carry the force of law."55 The Court held that "administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority."56 Such a delegation could be shown by an agency's authority to conduct formal adjudications or notice-and-comment rulemaking, "or by some other indication of a comparable congressional intent."57 The Court found no such indication here—the tariff classifications were not issued pursuant to formal procedures and the rulings did not bind third parties.58 Further, their diffuse nature and high volume—over 10,000 classifications issued every year at 46 different agency field offices—indicated that such classifications did not carry the force of law.59

Mead and Christensen thus indicate that a key indicator of a congressional delegation of power to interpret ambiguity or fill in the gaps of a statute is authority to utilize formal procedures such as notice-and-comment rulemaking or formal adjudications to implement a statute.60 An agency's interpretation of a statute reached through these means is thus more likely to qualify for Chevron deference than is an informal interpretation,61 such as one issued in an opinion letter or internal agency manual.62

Nonetheless, the Supreme Court has indicated that an agency's use of formal procedures in interpreting a statute is not a necessary condition for the application of Chevron deference.63 Mead indicated that a delegation of interpretive authority could be shown by an agency's power to conduct notice-and-comment rulemaking or formal adjudications, "or by some other indication of a comparable congressional intent."64 In Barnhart v. Walton, the Court deferred under Chevron to the Social Security Administration's interpretation of the Social Security Act's provisions regarding disability benefits.65 The majority opinion, written by Justice Breyer, examined a variety of factors in finding that Chevron deference was applicable to the agency's interpretation.66 The Court noted that, under Mead, the application of Chevron deference depended on "the interpretive method used and the nature of the question at issue."67 In this case, while the agency interpretation was reached informally, it was nonetheless "one of long standing," having apparently been in place for over 40 years.68 Rejecting a bright-line rule that would require formal procedures to merit Chevron deference, the Court noted that a number of factors could be relevant in determining whether the Chevron framework is appropriate, such as "the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the agency has given the question over a long period of time."69

Following Barnhart's case-by-case approach to when the Chevron framework governs judicial review of agency statutory interpretations, some lower courts have applied Chevron deference to certain agency statutory interpretations reached through informal means (e.g., a letter ruling issued to parties), particularly when an agency has expertise in implementing a complex statutory scheme.70

Agency Interpretations of the Scope of Its Authority ("Jurisdiction")

The Supreme Court has also ruled that an agency's statutory interpretation concerning the scope of its jurisdiction is eligible for deference.71 In City of Arlington v. FCC, the Court rejected the contention that Chevron deference should not apply to an agency's "interpretation of a statutory ambiguity that concerns the scope of the agency's statutory authority,"72 reasoning that "there is no difference, insofar as the validity of agency action is concerned, between an agency's exceeding the scope of its authority (its 'jurisdiction') and its exceeding authorized application of authority that it unquestionably has."73 In that case, the Court examined the Telecommunications Act, which requires state and local governments to act on an application for siting a wireless telecommunications facility within a "reasonable period of time."74 The Federal Communications Commission (FCC) issued a declaratory ruling specifying the number of days that it considered reasonable to reach a decision on those applications,75 but this decision was challenged on the ground that the agency did not have delegated authority to adopt a binding interpretation of that portion of the statute.76

The Supreme Court granted certiorari on the question of whether a court should apply Chevron to an agency's determination of its own jurisdiction.77 In other words, the Court asked: did Chevron apply to the FCC's decision that it possessed authority to adopt a binding interpretation of this part of the statute? Or should courts refuse to defer to the FCC's "jurisdictional" decision that it enjoyed such authority? The Court ruled that the Chevron doctrine did apply, questioning whether an agency's jurisdictional authority could sensibly be distinguished from its nonjurisdictional power.78 According to the majority opinion, every new application of an agency's statutory authority could potentially be reframed as a questionable extension of the agency's "jurisdiction"; but ultimately, the question for a court in any case is simply "whether the agency has stayed within the bounds of its statutory authority."79

The Court majority rejected the dissent's view that even when an agency has general rulemaking authority, courts should first conduct a de novo review to determine if Congress has delegated interpretive authority to speak with the force of law on a particular issue.80 Instead, the majority held, the Chevron doctrine applied because Congress had vested the FCC with the authority to administer generally the Telecommunications Act through adjudication and rulemaking, and the agency had promulgated the disputed interpretation through the exercise of that authority.81

One way to understand City of Arlington is that the Court majority rejected the inclusion of a "jurisdictional" test at Chevron "step zero."82 The dissent urged that, before applying the Chevron framework, courts should conduct a threshold examination of whether an agency has received a delegation of interpretive authority over particular issues,83 essentially a "step zero" inquiry. The majority opinion, however, rejected examining that issue as a threshold matter. Instead, once the "preconditions to deference under Chevron are [otherwise] satisfied," the Court should proceed to the Chevron two-step framework and determine if the agency has reasonably interpreted the parameters of its statutory authority.84 In this case, Congress delegated to the agency the power to speak with the force of law in administering a statute, and the agency reached an interpretation through the exercise of that authority. Accordingly, the court held that Chevron's two-step framework was applicable to the agency's determination that it had authority to decide what constituted a "reasonable period of time."85

Major Questions Doctrine

The Court has sometimes declined to defer to an agency interpretation under Chevron when a particular case presents an interpretive question of such significance that "there may be reason to hesitate before concluding that Congress ... intended" to delegate resolution of that question to the agency.86 Although the Court has not fully articulated when the so-called "major questions doctrine" applies, and indeed, has never used this phrase itself,87 previous applications of this principle seem to rest on a determination by the Court that one of the core assumptions underlying Chevron deference—that Congress intended the agency to resolve the statutory ambiguity—is no longer tenable.88 The fact that an agency interpretation implicates a major question is sometimes deemed to render the Chevron framework of review inapplicable.89 However, the Court has also invoked this concern while applying Chevron,90 to justify concluding that under the two-part test, the Court should not defer to the agency's construction of the statute.91

The Court first held that a question of great "economic and political significance" might displace Chevron deference in FDA v. Brown & Williamson Tobacco Corp.92 The impetus for that dispute was the decision of the Food and Drug Administration (FDA) to regulate tobacco products.93 The Supreme Court decided that Congress had not given the FDA the authority to regulate tobacco products and invalidated the regulations.94 The Court acknowledged that its analysis was governed by Chevron, because the FDA regulation was based upon the agency's interpretation of the Food, Drug, and Cosmetic Act (FDCA), a statute that it administered.95 However, the Court resolved the matter at Chevron step one, concluding that Congress had "directly spoken to the issue" and "precluded the FDA's jurisdiction to regulate tobacco products."96

A significant factor in the Court's decision in Brown & Williamson was the fact that Congress had for decades enacted "tobacco-specific legislation" outside the FDCA, acting "against the backdrop of the FDA's consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco."97 The Court concluded that the apparent clarity of this legislative and regulatory history, considered against "the breadth of the authority that the FDA ha[d] asserted" when it promulgated the new regulations, undercut the justifications for Chevron deference.98 The Court then articulated what was later characterized by some observers as the major questions doctrine,99 holding that "[i]n extraordinary cases, ... there may be reason to hesitate before concluding that Congress has intended ... an implicit delegation" of authority "to fill in the statutory gaps."100 In the Court's view, this was such an extraordinary case, and the Justices were "obliged to defer not to the agency's expansive construction of the statute, but to Congress' consistent judgment to deny the FDA this power."101 The Court believed "that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion."102 Thus, in Brown & Williamson, the Court invoked this major questions consideration under Chevron's first step, as a factor supporting its conclusion that the FDCA unambiguously precluded the FDA's interpretation.103

The Supreme Court has cited the importance of a disputed question to avoid deferring to an agency under Chevron in a number of cases since Brown & Williamson, although the Court has applied the "major questions doctrine" in a somewhat ad hoc manner.104 In these subsequent cases, the Court has not clearly explained when an agency interpretation will raise a question so significant that a court should not defer, nor has it explained why this consideration is relevant in some cases but not others. In Whitman v. American Trucking Ass'ns, decided one year after Brown & Williamson, the Court invoked the major questions consideration as part of its Chevron step one analysis.105 The Court held that there was not a sufficient "textual commitment of authority" in the Clean Air Act to support the EPA's assertion that Congress had given the EPA the authority to consider costs when regulating air pollutants.106 In reaching this conclusion, the Court read the statutory text as being primarily concerned with promoting the "public health," rather than cost concerns.107 Because these provisions were highly important to this statutory scheme, the Court required a "clear" "textual commitment of authority to the EPA to consider costs."108 The Court observed that Congress "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes."109

In 2006, the Court invoked the major questions principle as one factor in its analysis at step zero in Gonzales v. Oregon.110 The Court held that Congress had not given the U.S. Attorney General the authority to issue an interpretive rule regarding the use of controlled substances in assisted suicides "as a statement with the force of law."111 Citing Brown & Williamson, the Justices refused to conclude that "Congress gave the Attorney General such broad and unusual authority through an implicit delegation in the [Controlled Substances Act's] registration provision."112

By contrast, the Court declined to apply the major question exception in Massachusetts v. EPA, decided in 2007.113 The Court was reviewing the EPA's decision to deny a rulemaking petition that had asked the EPA "to regulate greenhouse gas emissions from new motor vehicles under § 202 of the Clean Air Act."114 The EPA claimed that the CAA did not give it the authority to regulate "substances that contribute to climate change."115 As summarized by the Court, the EPA argued that "climate change was so important that unless Congress spoke with exacting specificity, it could not have meant the Agency to address it."116 The Court rejected this claim, distinguishing Brown & Williamson by deciding that in this case, the statutory scheme and congressional and regulatory "backdrop" supported a conclusion that the EPA had authority to regulate greenhouse gases.117

The doctrine was arguably revived118 in recent years, first in Utility Air Regulatory Group v. EPA,119 and then in King v. Burwell.120 In Utility Air, the Court reviewed EPA rules regulating greenhouse gas (GHG) emissions from stationary sources.121 The EPA had concluded that regulation of GHG emissions from motor vehicles triggered GHG permitting requirements for stationary sources.122 The Court held at step two of the Chevron analysis that the EPA's interpretation was "not permissible."123 The regulations represented an unreasonable reading of the statute in part because they would have constituted "an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization."124 In the Court's view, the "extravagant" and "expansive" power claimed by the EPA fell "comfortably within the class of authorizations that we have been reluctant to read into ambiguous statutory text."125

In King v. Burwell,126 the Court considered whether states participating in a federal health care exchange were eligible for tax credits under the Patient Protection and Affordable Care Act.127 The Court declined to apply the Chevron framework to analyze the statutory interpretation of the Internal Revenue Service (IRS), holding that this was an "'extraordinary case'" in which the Court had "'reason to hesitate before concluding that Congress'" implicitly delegated to the IRS the authority to "'fill in the statutory gaps.'"128 The Court concluded:

Whether [the tax] credits are available on Federal Exchanges is thus a question of deep "economic and political significance" that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort.129

The King v. Burwell decision arguably represented a break from prior major question cases: in past cases, the Court had considered the economic or political significance of the regulation as one factor during its application of the Chevron framework of review.130 In King, the Court concluded that the significance of the issue rendered Chevron entirely inapplicable.131

Therefore, when reviewing an agency's interpretation of a statute, depending on the nature and significance of the question purportedly delegated to the agency,132 a court could decline to afford deference to the agency's interpretation either by utilizing the major questions doctrine as a factor in the course of its Chevron analysis133 or by concluding that the Chevron framework is altogether inapplicable.134 Consequently, some commentators have argued that the major questions doctrine has the potential to alter the doctrine of Chevron deference, shifting the power to interpret ambiguous statutes from agencies to courts.135 However, given the uncertainty about what constitutes a "major question," or how the major questions inquiry should be factored into the Chevron analysis, it seems equally plausible that courts will continue to be reluctant to invoke the doctrine.136

Chevron Step One

After a court has determined that Chevron applies to a particular agency's interpretation of a statute,137 the first inquiry in the two-step Chevron framework presents a question of statutory construction for the court.138 Step one requires a court to determine whether Congress "directly addressed the precise question at issue."139 A court proceeds to step two only if a statute is "silent or ambiguous with respect to the specific issue."140 If the statute is unambiguous, a court must "give effect" to that congressional intent without deferring to the agency.141 The Supreme Court stated in Chevron that a court should conduct the step one analysis by "employing traditional tools of statutory construction."142

This "traditional tools" instruction, however, left open for debate the tools that should be employed during Chevron's first step.143 There are different theories of statutory interpretation, and each interpretive school has a different view of which tools courts should appropriately deploy when they seek to discern statutory meaning.144 Generally, however, most courts begin by considering the text of the statute.145 To give meaning to this text, judges typically seek to determine the "natural reading"146 or "ordinary understanding"147 of disputed words. They often refer to dictionaries to find this ordinary meaning.148 A contested statutory term can be further clarified by reference to the statutory context, looking to that specific provision as a whole,149 or by examining how the term is employed in related statutes.150 Courts may also turn to a set of presumptions, or interpretive canons, about how people usually read meaning into text.151

Other tools of statutory construction, focused on determining legislative intent, are somewhat more controversial but are still frequently deployed in step one analyses.152 Accordingly, courts often refer to statutory purpose.153 They also regularly cite legislative history at Chevron step one.154 Similarly, to help determine congressional intent, courts have looked to past agency practice155 as well as agency interpretations that were advanced prior to the dispute before the court.156 Finally, judges may sometimes invoke normative or substantive canons of statutory interpretation, distinct from the textual canons mentioned above.157

Courts and scholars debate not only which methods of statutory construction constitute the "traditional tools" embraced in Chevron's step one, but also when application of those tools may render a statute sufficiently clear to conclude that Congress has "directly addressed the precise question at issue."158 It is an open question whether Chevron's first step presents a normal question of statutory interpretation, in which the court should look for ambiguity or clarity as it would any other time it interprets a statute, or whether instead a determination that a statute is unambiguous for the purposes of Chevron step one requires some higher level of clarity.159 Different judges may undertake a more or less searching inquiry,160 deploying different tools of statutory interpretation and, perhaps as a result, reaching different conclusions regarding whether to proceed to Chevron step two.161 Some decisions have implied that if a court needs to resort to a greater number of tools in the search for a clear meaning, this in itself suggests that a statute is ambiguous.162

Confusion about the level of statutory ambiguity required to trigger Chevron's step two is compounded by Supreme Court decisions that seemingly blur the line between the two steps. The Court has sometimes held only that an agency's interpretation is "reasonable"163 or "permitted"164 without expressing an opinion on whether the statute is sufficiently clear to indicate that Congress in fact unambiguously addressed the specific question before the court.165

Chevron Step Two

If a court determines at step one that the statute is ambiguous or silent on the particular issue in question, the Chevron framework next requires consideration of whether the agency's construction of the statute is "permissible."166 Under Chevron's step-two analysis, if Congress has delegated authority to an agency to fill in the gaps of a statute, courts will give "controlling weight" to reasonable agency interpretations of a statutory ambiguity.167 Accordingly, at Chevron's second step, courts may not substitute their own interpretation of a statutory provision for an agency construction that is reasonable.168 Chevron deference thus sometimes requires a court to sanction an interpretation that departs from what the court considers the best reading of a statute,169 so long as the agency's interpretation is "rationally related to the goals of the statute."170 Commentators have noted that, at least in the federal courts of appeals, agency interpretations are more likely to prevail when a case is resolved at Chevron's second step than when a court decides an issue at step one, or declines to apply the Chevron framework at all.171

Agency Discretion to Change Course

What qualifies as a permissible statutory construction is largely dependent on the particular context, although courts applying Chevron's second step may inquire into the sufficiency of an agency's reasoning172 and may consider the traditional tools of statutory construction.173 The theory of delegation animating Chevron deference implicitly acknowledges that an ambiguous statute permits a range of plausible interpretations.174 Within the parameters of its statutory delegation, an agency might have discretion to pursue a variety of different policy objectives.175 One important consequence of this principle is that agencies are permitted to change their interpretations of ambiguous statutes over time.176 Assuming agencies acknowledge the change and stay within the bounds of a reasonable interpretation,177 they may reconsider the wisdom of their policy choices and shift their construction of statutory ambiguities accordingly to reflect altered circumstances or a change in policy preferences.178

In addition to an agency's discretion to alter its interpretations at step two, another implication of Chevron's delegation theory is that an agency's construction of a statutory ambiguity can supersede a court's contrary prior decision on the meaning of a statute. Because the Chevron framework rests on the assumption that "it is for agencies, not courts, to fill statutory gaps"179 at Chevron's second step, agencies possess delegated interpretive authority to determine the legal meaning of ambiguities in statutes they administer. Accordingly, in National Cable & Telecommunications Association v. Brand X Internet Services (Brand X) the Supreme Court held that "[o]nly a judicial precedent holding that [a] statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction."180 Put another way, when a court concludes that its determination of a statute's meaning "follows from the unambiguous terms of [a] statute and thus leaves no room for agency discretion," an agency is foreclosed from adopting a contrary interpretation.181 But absent such a judicial finding, Brand X teaches that an agency is free to adopt a countervailing reasonable construction of a statutory ambiguity in the future.182

Differing Judicial Approaches to Step Two Analysis

Given the variety of statutory schemes implemented by federal agencies, as well as the potential for multiple reasonable interpretations of the same statute, precisely what constitutes a reasonable agency construction of a statute is difficult to define in the abstract. As an initial matter, some courts affirm the agency's interpretation under Chevron's step two without any sustained analysis beyond consideration of the statute at step one.183 In these situations, courts often appear to anchor their decision on their prior consideration at step one of the statute's meaning—meaning, for example, that if an agency's position is one of multiple interpretations that the court found could be reasonable at Chevron's first step, then the court will defer to the agency's interpretation at Chevron's second step.184

In other cases, however, courts at step two engage in a more thorough examination of the reasonableness of an agency's interpretation.185 In some instances, a court's analysis at step two focuses on the sufficiency of an agency's reasoning,186 an examination which can overlap with "hard look" review under the "arbitrary and capricious" standard of the APA.187 Some courts may also employ the traditional tools of statutory construction at Chevron's second step. One common inquiry courts consider is whether the agency's position comports with the overall purpose of the statute in question.188 For example, in Chevron itself, the Supreme Court held that the agency's interpretation "of the term 'source' [was] a permissible construction of the statute" in light of the statute's goals "to accommodate progress in reducing air pollution with economic growth."189 Lower courts have followed suit, examining at Chevron's second step whether an agency's interpretation of a statutory ambiguity accords with a statute's policy objectives.190 A variety of other indicia can also potentially be relevant in assessing the reasonableness of an agency interpretation, including whether the agency's construction serves the public interest,191 and whether the agency has consistently interpreted the statute in the same manner over time.192

Courts may also apply other traditional tools of statutory interpretation at step two, although this practice can sometimes mirror a court's step one analysis.193 For example, courts will examine whether an agency's interpretation makes sense within the statutory scheme, looking for consistency with other relevant provisions in the statute at issue,194 the interaction between various statutory provisions,195 or prior judicial precedents interpreting similar provisions.196 In addition, courts may inquire into the commonly used meaning of a statutory term.197 Importantly, some courts apply a broader range of tools of construction at Chevron's second step than at step one. For instance, some courts will examine a statute's legislative history at step two to determine if the agency has reasonably complied with Congress's goals, even if those courts believe that doing so at step one would be inappropriate.198

As noted above, some observers have concluded that agencies are more likely to prevail at Chevron's second step than when a court completes its analysis at step one or conducts review de novo of the agency's position.199 Potentially, judicial deference to an agency's interpretation may lead to relatively greater national uniformity in the implementation of regulatory statutes,200 a feature arguably endorsed by the Supreme Court.201 Because Chevron instructs courts of appeals to defer to reasonable agency interpretations of statutory ambiguities, circuit splits on the meaning of ambiguous statutory provisions may be less likely than would arise without Chevron deference.202 In turn, it is arguably more likely that agencies entrusted with administering statutes will do so uniformly regardless of forum, compared to courts across different circuits, which might reach conflicting interpretations of a statute's meaning.203

The potential for Chevron deference to harmonize the administration of a statute might shed light on the observation that the Supreme Court is arguably less deferential than federal courts of appeals when it applies Chevron's second step.204 That is, while the Court applies the same basic framework as do lower courts,205 certain recent decisions at least appear to apply Chevron's second step more stringently.206 In the 2015 case of Michigan v. EPA, for example, the Court rejected as unreasonable the EPA's interpretation of a CAA provision that authorized the agency to regulate certain emissions only where "appropriate and necessary."207 In making the initial determination whether to regulate at all, the EPA did not consider the cost to industry in doing so.208 The majority opinion applied the Chevron framework,209 but held at Chevron's second step that it was unreasonable for the EPA not to consider costs when initially deciding that it was appropriate and necessary to regulate.210 In contrast, the dissent would have upheld the EPA's interpretation.211 While the agency did not consider costs in deciding whether to regulate, it did consider costs in setting the specific emissions limits.212 Importantly, however, both the majority and the dissenting Justices agreed that not considering costs at all would be unreasonable.213 Consequently, all the Justices applied Chevron in a manner cabining the agency's discretion in interpreting the statute – an approach that contrasts with the deference traditionally typically given agency interpretations at step two.

Issues to Consider

Criticisms and Future Application of Chevron

The Court's decision in Chevron is a foundational case for understanding the modern administrative state.214 It is one of the most cited cases by federal courts in administrative law disputes,215 and supplies a background principle of deference to statutory ambiguity against which Congress may legislate.216 Indeed, some scholars have noted that a certain amount of ambiguity in a statute is likely inevitable.217 Consequently, Chevron is sometimes characterized as placing resolution of statutory ambiguities in politically accountable agencies, rather than unelected Article III courts.218 A number of commentators have nonetheless criticized the doctrine of Chevron deference in the years since the Court's opinion,219 although recent skepticism from various Justices has arguably brought increased attention to their concerns.220 Justice Thomas, for instance, has questioned the doctrine on separation of powers grounds.221 At bottom, Justice Thomas objects to "Chevron's fiction that ambiguity in a statutory term is best construed as an implicit delegation of power to an administrative agency to determine the bounds of the law."222 He argues that judicial deference to ambiguous agency statutory interpretations contradicts the Constitution's vestment of judicial power in Article III courts, which requires the judiciary, rather than the Executive, to "say what the law is."223 In addition, for Justice Thomas, to the extent that agencies are not truly interpreting statutory ambiguities, but rather formulating policy under the Chevron deference framework, "[s]tatutory ambiguity thus becomes an implicit delegation of rule-making authority, [allowing the agency] to formulate legally binding rules to fill in gaps based on policy judgments made by the agency rather than Congress."224 But, for Justice Thomas, granting agencies power to speak with the force of law with respect to matters on which "Congress did not actually have an intent" violates Article I by permitting the executive branch to exercise legislative power.225

Likewise, recently appointed Justice Neil Gorsuch criticized the doctrine while he was a judge on the Court of Appeals for the Tenth Circuit.226 For example, then-Judge Gorsuch argued in a concurring opinion that deferring to agency interpretations under Chevron was an "abdication of the judicial duty" to say what the law is.227 This shift of responsibility, for Judge Gorsuch, raises due process and equal protection concerns.228 In particular, he argued that under the Chevron framework, regulated parties do not receive fair notice of what the law requires.229 Additionally, rather than effectuating "the fairest reading of the law that a detached magistrate can muster," politicized agency decisionmakers enjoy discretion to determine legal requirements "based merely on the shift of political winds."230 Further, Judge Gorsuch questioned whether silence or ambiguity in a statute truly reflects congressional intent to delegate interpretive authority to federal agencies, and argued that this theory contradicts the APA's mandate to courts to interpret the law.231 Finally, Judge Gorsuch noted that, at least in some instances, the application of Chevron deference might constitute an unconstitutional delegation of legislative authority to the executive branch.232

Other judges sitting on the federal courts of appeals have raised similar objections to Chevron deference.233 At least one has echoed the separation of powers concerns voiced by Justices Gorsuch and Thomas;234 another has lamented that Chevron's broad scope encourages agencies to aggressively pursue policy goals "unless ... clearly forbidden," rather than fairly determining the best interpretation of a statute's meaning.235 And numerous scholars have also questioned the doctrine,236 critiquing, among other things, its purported historical foundations,237 theoretical basis,238 and inconsistent application by the Court.239 Further, scholars have criticized the apparent tools provided in Chevron to determine the meaning of a statute,240 the Court's test for when Chevron applies,241 as well as confusion regarding the mechanics and purpose of the doctrine's framework stemming from Chevron's "unsystematic origin."242 Finally, scholars have debated the merits of each of Chevron's initial justifications, including the presence of an implied delegation of interpretive authority from Congress to an agency, the role of agency expertise, and the importance of political accountability.243

These concerns aside, the doctrine as a whole nevertheless is firmly established at the Supreme Court.244 Most importantly, the majority of Supreme Court Justices appear comfortable applying the doctrine.245 Nonetheless, appellate judges and commentators have noted that the Supreme Court has recently limited the doctrine's reach and applied Chevron's second step fairly stringently.246 Given the doubts about the constitutionality of Chevron deference of at least two Justices,247 the competing tests for determining when Chevron applies to judicial review of agency action,248 and the uncertainty about whether an agency interpretation concerns a "major question" that does not merit agency deference,249 future disagreements about the scope of the doctrine are quite possible.250 Achieving consensus on the doctrine's applicability may prove difficult in certain cases, at least with respect to those areas where the appropriateness of Chevron has not been conclusively decided by the Supreme Court.251 Further, just as the Court has limited the reach of the doctrine in the past, such as by requiring certain procedures to apply the Chevron framework or declining to apply Chevron to certain issues, the scope of these "doctrinal safety valves" may be expanded in future cases.252

Could Congress Eliminate Chevron?

Chevron is a judicially created doctrine that rests, in part, upon an assumption made by courts about congressional intent: that where a statute is silent or ambiguous, Congress would have wanted an agency, rather than a court, to fill in the gap.253 Accordingly, Congress can determine whether a court will apply Chevron review to an agency interpretation. When it drafts a statute delegating authority to an agency, it may "speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion."254 Thus, Congress can legislate with Chevron as a background presumption, using ambiguity to delegate interpretive authority to agencies or writing clearly to withhold that authority.

Alternatively, if it deemed such action appropriate, Congress could also act more directly to control how courts will review agency action. Congress has the authority to shape the standards used by courts to review agency actions. Perhaps most notably, Congress has outlined the standards that should generally govern judicial review of agency decisions in the APA.255 Although Chevron's place within the APA framework is a matter of dispute,256 it is within Congress's power to modify or displace entirely the Chevron framework by amending the APA to impose a different standard of review.257

As a more limited approach to working outside of Chevron, Congress also has the power to prescribe different judicial review standards in the specific statutes that grant agencies the authority to act.258 Congress took such a step when it enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010. A provision of the act instructs courts that, when they review "any determinations made by the Comptroller [of the Currency] regarding preemption of a State law," they should "assess the validity of such determinations" by reference to a series of factors outlined in the Supreme Court's opinion in Skidmore v. Swift & Co.259 This Skidmore standard is considered less deferential to agencies than the Chevron framework of review,260 and courts so far have recognized this legislative choice as significant.261

However, given the extent to which the Chevron doctrine is unsettled, it is unclear exactly how much of the Chevron framework of review rests on presumptions about congressional intent.262 Therefore, it remains difficult to determine exactly how or to what extent Congress, if it deemed such action warranted, could intervene to displace that presumption.

Author Contact Information

[author name scrubbed], Legislative Attorney ([email address scrubbed], [phone number scrubbed])
[author name scrubbed], Legislative Attorney ([email address scrubbed], [phone number scrubbed])

Footnotes

1.

La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986) ("[A]n agency literally has no power to act ... unless and until Congress confers power upon it.").

2.

See CRS Report RL32240, The Federal Rulemaking Process: An Overview, coordinated by [author name scrubbed].

3.

See 5 U.S.C. §§ 556, 557 (mandating certain procedures when agencies conduct formal adjudications).

4.

See 5 U.S.C. § 558 (imposing certain requirements on agencies when reviewing applications for a license).

5.

See, e.g., Wilson v. Commodity Futures Trading Comm'n, 322 F.3d 555, 560 (8th Cir. 2003) (noting that "[t]he Commission's choice of sanctions" under 7 U.S.C. § 9 for a violation of the Commodity Exchange Act "will be upheld in the absence of an abuse of discretion").

6.

5 U.S.C. § 706(2)(A), (C).

7.

These agency interpretations may be explicitly announced in agency rules or adjudications, or they may be implicit in an agency's action and later announced in court as a defense of that action.

8.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984).

9.

Id. at 842.

10.

Id. at 842-43.

11.

Id. at 843.

12.

Id. at 840; 42 U.S.C. § 7502.

13.

Chevron, 467 U.S. at 840-41, 857-58.

14.

Id. at 840.

15.

See id. at 856.

16.

Id. at 841, 859.

17.

Id. at 859.

18.

Id. at 866.

19.

Id. at 842-43.

20.

Id. at 848-53.

21.

Id. at 860.

22.

Id. at 861.

23.

Id. at 862.

24.

Id.

25.

Id.

26.

Id. at 863.

27.

Id. at 866.

28.

Id. at 843-44, 865-66. Justice Scalia later noted another justification for Chevron deference, rooted in the history of federal court review of agency action before passage of the federal question jurisdiction statute in 1875. United States v. Mead Corp., 533 U.S. 218, 241-42 (2001) (Scalia, J., concurring) (asserting that the Chevron decision "was in accord with the origins of federal-court judicial review [as] [j]udicial control of federal executive officers was principally exercised through the prerogative writ of mandamus").

29.

Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 192 (2006) (describing how Justices Stephen Breyer and Antonin Scalia, with very different views of the Chevron analysis, "both approved of resort to that [legal] fiction").

30.

Chevron, 467 U.S. at 843-44 (citations omitted).

31.

Id. at 860-61.

32.

Id. at 866.

33.

See id.

34.

Id. at 864.

35.

Id. at 865.

36.

See City of Arlington v. FCC, 133 S. Ct. 1863, 1886 (2013) (Roberts, J., dissenting) ("Chevron importantly guards against the Judiciary arrogating to itself policymaking properly left, under the separation of powers, to the Executive."); Jonathan H. Adler, Restoring Chevron's Domain, 81 Mo. L. Rev. 983, 990 (2016) (explaining the "constitutional roots" of "the delegation foundation of Chevron"); but cf. David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 Sup. Ct. Rev. 201, 222 (2001) ("We have argued ... that separation-of-powers law usually neither prohibits nor requires Chevron deference."); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 446 (1989) ("[T]he notion that administrators may interpret statutes that they administer is inconsistent with separation of powers principles that date back to the early days of the American republic and that retain considerable vitality today. The basic case for judicial review depends on the proposition that foxes should not guard henhouses.") (citations omitted).

37.

Chevron, 467 U.S. at 865-66 (emphasis added). See also Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2373-74 (2001) (arguing the "Chevron deference rule had its deepest roots in a conception of agencies as instruments of the President," and is best justified as ensuring that policymaking functions track political accountability).

38.

Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) ("A precondition to deference under Chevron is a congressional delegation of administrative authority."); Envirocare of Utah, Inc. v. Nuclear Regulatory Comm'n, 194 F.3d 72, 79 n.7 (D.C. Cir. 1999) (noting that "when it comes to statutes administered by several different agencies—statutes, that is, like the APA and unlike the standing provision of the Atomic Energy Act—courts do not defer to any one agency's particular interpretation").

39.

Sunstein, supra note 29, at 191; Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 Geo. L.J. 833, 836 (2001).

40.

See infra "Agency Interpretations of the Scope of Its Authority ("Jurisdiction")."

41.

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) [hereinafter Brown & Williamson].

42.

For more information, see CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by [author name scrubbed].

43.

533 U.S. 218, 235 (2001).

44.

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) ("We consider that the rulings, interpretations and opinions of the Administrator under [the Fair Labor Standards] Act ... constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."); United States v. Shimer, 367 U.S. 374, 383 (1961) ("If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned."); Hon. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 512 (1989) ("It should not be thought that the Chevron doctrine ... is entirely new law. To the contrary, courts have been content to accept 'reasonable' executive interpretations of law for some time.").

45.

Mead, 533 U.S. at 235 (quoting Skidmore, 323 U.S. at 140).

46.

Skidmore, 323 U.S. at 140.

47.

See Chevron, 467 U.S. at 843-44, 865.

48.

Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006) (explaining that de novo review requires the court to "review the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered").

49.

Sorenson Commc'ns Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014) ("[A]n agency has no interpretive authority over the APA.").

50.

Fed. Labor Relations Auth. v. U.S. Dep't of the Treasury, Fin. Mgmt. Serv., 884 F.2d 1446, 1451 (D.C. Cir. 1989); Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 164 F. Supp. 3d 145, 155-56 (D.D.C. 2016) ("FOIA, of course, affords complainants who bring suit under Section 552(a)(4)(B) a de novo review of the agency's withholding of information.").

51.

See, e.g., Emp'r Solutions Staffing Grp. II, L.L.C. v. Office of Chief Admin. Hearing Officer, 833 F.3d 480, 484 (5th Cir. 2016); see also Miller v. Johnson, 515 U.S. 900, 923 (1995) (declining to extend deference to an agency interpretation that "raises a serious constitutional question").

52.

5 U.S.C. § 553 (rulemaking); §§ 556, 557 (adjudications).

53.

529 U.S. 576, 587 (2000).

54.

Id.

55.

Mead, 533 U.S. at 221.

56.

Id. at 226-27.

57.

Id. at 227.

58.

Id. at 233.

59.

Id. at 230-34.

60.

Mead, 533 U.S at 226-27; Christensen v. Harris County, 529 U.S. 576, 587 (2000).

61.

See Gonzales v. Oregon, 546 U.S. 243, 268 (2006) (declining to accord Chevron deference because the Controlled Substances Act "does not give the Attorney General authority to issue the Interpretive Rule as a statement with the force of law"); Sunstein, supra note 29, at 218; see, e.g., N.Y. Pub. Interest Research Grp. v. Whitman, 321 F.3d 316, 328-29 (2d Cir. 2003); Shotz v. City of Plantation, 344 F.3d 1161, 1179 (11th Cir. 2003).

62.

Christensen, 529 U.S. at 587.

63.

Nat'l Cable & Telecommunications Ass'n. v. Brand X Internet Servs., 545 U.S. 967, 1004 (2005) (Breyer, J., concurring) ("It is not surprising that the Court would hold that the existence of a formal rulemaking proceeding is neither a necessary nor a sufficient condition for according Chevron deference to an agency's interpretation of a statute. It is not a necessary condition because an agency might arrive at an authoritative interpretation of a congressional enactment in other ways, including ways that Justice Scalia mentions. It is not a sufficient condition because Congress may have intended not to leave the matter of a particular interpretation up to the agency, irrespective of the procedure the agency uses to arrive at that interpretation, say, where an unusually basic legal question is at issue.") (citations omitted).

64.

Id. at 227.

65.

535 U.S. 212, 222 (2002).

66.

See Kristin Hickman & Nicholas Bednar, Chevron's Inevitability, 85 Geo. W. L. Rev. (forthcoming 2017) (manuscript at 146); Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 1003–04 (2005) (Breyer, J., concurring) (noting that United States v. Mead Corp., 533 U.S. 218, 237 (2001) taught that delegation meriting Chevron deference can be shown "in a variety of ways").

67.

Id.

68.

Id. at 221.

69.

Id. at 222.

70.

See, e.g., Atrium Med. Ctr. v. U.S. Dep't of Health & Human Servs., 766 F.3d 560, 572 (6th Cir. 2014) (extending Chevron deference to the Center for Medicare and Medicaid Service's interpretation of the Medicare Act contained in an agency manual); Mylan Labs., Inc. v. Thompson, 389 F.3d 1272, 1279-80 (D.C. Cir. 2004) (extending Chevron deference to an interpretation contained in an agency's letter ruling); Davis v. EPA, 336 F.3d 965, 972-75, 972 n.5 (9th Cir. 2003) (extending Chevron deference to informal agency adjudication of request to waive emissions requirement).

71.

City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013).

72.

Id. at 1867-68, 1870-71.

73.

Id. at 1870.

74.

47 U.S.C. § 332(c)(7)(B).

75.

The agency determined that 90 days was appropriate for some applications and 150 days was proper for others. See In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994, 14001.

76.

See City of Arlington, 133 S. Ct. at 1867; 47 U.S.C. § 332(c)(7)(A).

77.

City of Arlington, 133 S. Ct. at 1867-68.

78.

See id. at 1868 ("The argument against deference rests on the premise that there exist two distinct classes of agency interpretations.... That premise is false, because the distinction between 'jurisdictional' and 'nonjurisdictional' interpretations is a mirage.").

79.

Id.

80.

Compare City of Arlington, 133 S. Ct. at 1874 (majority opinion), with id. at 1880 (Roberts, J., dissenting) ("But before a court may grant such deference, it must on its own decide whether Congress—the branch vested with lawmaking authority under the Constitution—has in fact delegated to the agency lawmaking power over the ambiguity at issue.").

81.

City of Arlington, 133 S. Ct. at 1874 (majority opinion).

82.

See supra "How Did the Agency Arrive at Its Interpretation?" at 6-7.

83.

City of Arlington, 133 S. Ct. at 1880 (Roberts, J., dissenting).

84.

City of Arlington, 133 S. Ct. at 1874 (majority opinion).

85.

Id. at 1866, 1874.

86.

Brown & Williamson, 529 U.S. 120, 159 (2000).

87.

The phrase "major questions doctrine" emerged from academic work. E.g., id. at 159, citing Hon. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ("A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute's daily administration"). See also Kevin O. Leske, Major Questions About the "Major Questions" Doctrine, 5 Mich. J. Envtl. & Admin. L. 479, 480 n.3 (2016) (listing other scholarly labels for the doctrine and noting that "the Court itself does not use a particular name").

88.

See, e.g., King v. Burwell, 135 S. Ct. 2480, 2489 (2015). Some commentators have argued that both the Chevron step zero doctrine and major questions doctrine serve to align Chevron deference more closely with those situations in which Congress has actually delegated to an agency the authority to interpret a particular statutory provision. See, e.g., Adler, supra note 36, at 993, 994.

89.

See King, 135 S. Ct. at 2489 (invoking major questions doctrine at outset of opinion); Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (invoking major questions doctrine during step zero inquiry).

90.

See City of Arlington, 133 S. Ct.at 1872 (describing major-questions cases as applications of Chevron).

91.

E.g., Massachusetts v. EPA, 549 U.S. 497, 531 (2007) (invoking major questions doctrine during Chevron step one); Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014) (invoking major questions doctrine during Chevron step two).

92.

Brown & Williamson, 529 U.S. 120, 159-60 (2000). Cf. Jonas J. Monast, Major Questions about the Major Questions Doctrine, 68 Admin. L. Rev. 445, 453-57 (2016) (discussing intellectual precursors to Brown & Williamson); Asher Steinberg, Another Addition to the Chevron Anticanon: Judge Kavanaugh on the "Major Rules" Doctrine, The Narrowest Grounds (May 7, 2017, 8:44 PM), http://narrowestgrounds.blogspot.com/2017/05/another-addition-to-chevron-anticanon.html ("[T]he best view of the major-questions exception is that it didn't truly exist until King v. Burwell was decided ... Major-questions cases before Burwell had,.... far from applying an exception to Chevron, applied Chevron itself, albeit in ways that felt less deferential than traditional Chevron review.").

93.

Brown & Williamson, 529 U.S. at 125.

94.

Id. at 161.

95.

Id. at 132.

96.

Id. at 133. The majority opinion in City of Arlington v. FCC, 133 S. Ct. 1863, 1872 (2013), invoked this passage from Brown & Williamson to support the following proposition: "The U.S. Reports are shot through with applications of Chevron to agencies' constructions of the scope of their own jurisdiction."

97.

Brown & Williamson, 529 U.S. at 144.

98.

Id. at 159-60.

99.

E.g., Monast, supra note 92, at 457.

100.

Brown & Williamson, 529 U.S. at 159.

101.

Id. at 160.

102.

Id.

103.

Id. at 133.

104.

See Monast, supra note 92, at 462 ("[T]he Court has neglected to articulate the bounds of the major questions doctrine.... "); See Note, Major Questions Objections, 129 Harv. L. Rev. 2191, 2192 (2016) [hereinafter Note] ("[T]his Note.... proposes to abandon the fruitless quest to rationalize the disorderly major question cases in terms of conventional doctrine, and suggests it might be better to regard them as episodes of vaguely equitable intervention ... "). But see U.S. Telecom Ass'n v. FCC, 855 F.3d 381, 419 (2017) (Kavanaugh, J., dissenting) (describing scheme of judicial review of agency actions in which "ordinary agency rules" are reviewed under Chevron framework but "major agency rules" are scrutinized for clear congressional authorization).

105.

531 U.S. 457, 468 (2001). The major questions doctrine arguably arose in Whitman in the context of a Chevron step-one inquiry: whether the statute unambiguously conferred upon the EPA the authority to consider implementation costs. See id. However, the Court did not explicitly invoke the Chevron framework until later in the opinion. Id. at 481.

106.

See id. at 468.

107.

Id. at 465, 469.

108.

Id. at 468.

109.

Id.

110.

546 U.S. 243, 267 (2006).

111.

Id. at 255-56, 267-68.

112.

Id. at 267.

113.

549 U.S. 497, 531 (2007).

114.

Id. at 510 (internal quotation marks omitted).

115.

Id. at 528.

116.

Id. at 512.

117.

Id. at 531. Arguably, the Court resolved this case under Chevron step one, when it held that the statutory text clearly authorized EPA regulation. See id. (declining "to read ambiguity into a clear statute"); id. at 529 n.26 ("EPA's distinction ... finds no support in the text of the statute.... "). But see id. at 529 n.26 (invoking Chevron step two by suggesting EPA's "is a plainly unreasonable reading of a sweeping statutory provision"); id. at 553, 558 (Scalia, J., dissenting) (arguing majority opinion improperly failed to apply Chevron or to explain why Chevron deference was inapplicable).

118.

A number of commentators had previously declared the major questions doctrine to be dead. See David Baake, Obituary: Chevron's "Major Questions Exception", Harv. Envtl. L. Rev.: HELR Blog (Aug. 27, 2013, 5:43 PM), http://harvardelr.com/2013/08/27/obituary-chevrons-major-questions-exception/ (concluding Court "'unceremoniously killed'" major questions doctrine in Massachusetts v. EPA, 549 U.S. at 531 (majority opinion), and City of Arlington v. FCC, 133 S. Ct. 1863, 1872 (2013)) (quoting Abigail R. Moncrieff, Reincarnating the "Major Questions" Exception to Chevron Deference as a Doctrine of Non-Interference (Or Why Massachusetts v. EPA Got it Wrong), 60 Admin. L. Rev. 593, 598 (2008)).

119.

134 S. Ct. 2427, 2444 (2014).

120.

135 S. Ct. 2480, 2489 (2015).

121.

134 S. Ct. at 2437-38.

122.

Id. at 2437.

123.

Id. at 2442.

124.

Id. at 2444.

125.

Id.

126.

135 S. Ct. 2480, 2487 (2015).

127.

42 U.S.C. § 18031; 26 U.S.C. §§ 36B(b)-(c).

128.

King, 135 S. Ct. at 2488-89 (quoting Brown & Williamson, 529 U.S. 120, 159 (2000)).

129.

Id. at 2489 (quoting Utility Air, 134 S. Ct. at 2444).

130.

See Note, supra note 104, at 2201.

131.

See King, 135 S. Ct. at 2489. Although the doctrine was also invoked in Gonzales to render Chevron inapplicable, it was cited in the course of a step zero analysis and not on its own. Gonzales v. Oregon, 546 U.S. 243, 267 (2006). In King, the Court cited only the major questions doctrine, absent any other Chevron-related inquiry. See King, 135 S. Ct. at 2489. See also Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 795 (2017), ("[T]he Court in King saw majorness as a hard, 'on/off' trigger for, rather than a 'soft' and nonexclusive guiding factor of, the Chevron inquiry. Indeed, King for the first time applied the [major questions exception] as a pre-Chevron device, citing to majorness and majorness alone as a sufficient basis for withholding judicial deference altogether.").

132.

Brown & Williamson, 529 U.S. at 159.

133.

E.g., id. at 132.

134.

E.g., King, 135 S. Ct. at 2489.

135.

See Coenen & Davis, supra note 131, at 796-99; Leske, supra note 87, at 499; Note, supra note 104, at 2202.

136.

See, e.g., Coenen & Davis, supra note 131, at 780 (arguing that because Supreme Court has not defined "what makes a question 'major,'" lower courts should not apply doctrine); but see, e.g., U.S. Telecom Ass'n v. FCC, 855 F.3d 381, 422 n.4 (2017) (Kavanaugh, J., dissenting) (concluding lower courts are constrained to apply major questions doctrine).

137.

Courts may be reviewing either an explicit agency interpretation of a statute, announced in a rule or adjudication, or may be reviewing an agency action that implicitly rests on the agency's view of the authorizing statute.

138.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984).

139.

Id. at 843.

140.

Id. Notably, however, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has introduced a distinct analytical question into the Chevron analysis. Daniel J. Hemel & Aaron L. Nielson, Chevron Step One-and-a-Half, 84 U. Chi. L. Rev. 757, 761 (2017). Before it will afford Chevron deference to an agency interpretation, the D.C. Circuit asks whether the agency has interpreted the statute by bringing "its experience and expertise to bear in light of competing interests at stake." PDK Labs. Inc. v. U.S. DEA, 362 F.3d 786, 797-98 (D.C. Cir. 2004). The D.C. Circuit will require an agency to reconsider its decision if the agency has conducted an erroneous step one analysis—that is, if the agency incorrectly believed that its decision was mandated by the statute, and therefore failed to recognize a statutory ambiguity and interpret that ambiguity by exercising its discretion. See Prill v. NLRB, 755 F.2d 941, 950 (D.C. Cir. 1985); Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir. 2006) ("[W]e cannot say that either proffered construction reflects the Congress's unambiguously expressed intent. We therefore cannot uphold the [agency's] interpretation under step 1 of Chevron. Nor may we review it under step 2.") (citation omitted).

141.

Chevron, 467 U.S. at 842-43.

142.

Id. at 843 n.9.

143.

See id.; Peter L. Strauss, Overseers or "The Deciders" – The Courts in Administrative Law, 75 U. Chi. L. Rev. 815, 820 (2008).

144.

E.g., Lisa Shultz Bressman, Chevron's Mistake, 58 Duke L.J. 549, 551 (2009) ("In applying Chevron, courts rely heavily on the dominant theories of statutory interpretation: intentionalism, purposivism, or textualism."). See generally John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 424 (2005) ("[W]hereas intentionalists believe that legislatures have coherent and identifiable but unexpressed policy intentions, textualists believe that the only meaningful collective legislative intentions are those reflected in the public meaning of the final statutory text.").

145.

See, e.g., Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007). Cf. Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 93 (2007) ("[N]ormally neither the legislative history nor the reasonableness of the Secretary's method would be determinative if the plain language of the statute unambiguously indicated that Congress sought to foreclose the Secretary's interpretation."); id. at 109 (Scalia, J., dissenting) ("We must begin, as we always do, with the text.").

146.

Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 611 (1991).

147.

Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 697 (1995). See also Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 2130 (2012) (considering ordinary usage of statutory term "child").

148.

E.g., MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 227-29 (1994). Cf. Nat'l R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S. 407, 419 (1992) ("The existence of alternative dictionary definitions of the word 'required,' each making some sense under the statute, itself indicates that the statute is open to interpretation.").

149.

E.g., Nat'l R.R. Passenger Corp., 503 U.S. at 410-11, 418-19 (defining statutory term by reference to "statutory presumption" created in subsequent statutory text).

150.

E.g., Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 223 (2009) (comparing "parallel provisions" of act); Brown & Williamson, 529 U.S. at 134-37 (looking to act "as a whole" to determine its "core objectives," and examining operation of statute); Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 612 (1991) (reviewing judicial construction of "similar provisions in other regulatory statutes").

151.

E.g., Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 697-98 (1995) (applying canon against surplusage). Cf. Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (declining to apply presumption of consistent usage where statutory context suggested otherwise). See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012); cf. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons of About How Statutes are to be Construed, 3 Vand. L. Rev. 395, 401-06 (1950) ("[T]here are two opposing canons on almost every point.").

152.

Compare, e.g., Sweet Home, 515 U.S. at 698 ("[T]he broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid."); with id. at 726 (Scalia, J., dissenting) ("Deduction from the 'broad purpose' of a statute begs the question if it is used to decide by what means (and hence to what length) Congress pursued that purpose; to get the right answer to that question there is no substitute for the hard job (or, in this case, the quite simple one) of reading the whole text.").

153.

E.g., Cuozzo Speech Techs., LLC v. Lee, 136 S. Ct. 2131, 2142-44 (2016) (considering purpose of statute). Cf. Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 93 (2007) (Kennedy, J., concurring) (arguing majority opinion erred in considering history and purpose of statute before plain language because, "[w]ere the inversion to become systemic, it would create the impression that agency policy concerns, rather than the traditional tools of statutory construction, are shaping the judicial interpretation of statutes"); MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 234 (1994) (rejecting arguments regarding legislative purpose in light of clear statutory meaning).

154.

E.g., Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 2131 (2012) (considering prior version of statute); INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37, 441-42 (1987) (reviewing congressional record and rejection of Senate version of bill). But see Cardoza-Fonseca, 480 U.S. at 452-53 (Scalia, J., concurring) (disapproving of majority's use of legislative history because courts "are not free to replace [clear statutory language] with an unenacted legislative intent"). Some courts believe legislative history should only be considered at step two of a Chevron inquiry. Hemel & Nielson, supra note 140, at 781.

155.

E.g., Cardoza-Fonseca, 480 U.S. at 434-35 (reviewing agency practice under prior version of statute).

156.

E.g., Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng'rs [hereinafter SWANCC], 531 U.S. 159, 168 (2001) (looking to agency's original interpretation of a federal statute); Brown & Williamson, 529 U.S. at 145-46 (looking to prior agency interpretations of the governing statute, as announced in congressional hearings).

157.

E.g., Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007) (applying presumption against implied repeals); INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001) (applying presumption against retroactive legislation); SWANCC, 531 U.S. at 172-73 (applying canon of constitutional avoidance); Am. Water Works Ass'n v. EPA, 40 F.3d 1266, 1271 (D.C. Cir. 1994) (applying absurdity doctrine). See generally Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 Yale L.J. 64, 76-84 (2008) (reviewing judicial approaches to reconciling normative canons with Chevron framework).

158.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984). See Scalia, supra note 44, at 520 ("Chevron ... suggests that the opposite of 'ambiguity' is not 'resolvability' but rather 'clarity.' Here, of course, is the chink in Chevron's armor—the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions.... How clear is clear?") (citation omitted). For one relatively recent example of disagreement that may arise when applying these traditional tools of statutory construction, see Scialabba v. De Osorio, 134 S. Ct. 2191, 2203 (2014) (plurality opinion) (concluding statute "does not speak unambiguously to the issue here"); id. at 2219 (Sotomayor, J., dissenting) (concluding statute "answers the precise question in this case").

159.

Compare Coventry Health Care of Mo., Inc. v. Nevils, 137 S. Ct. 1190, 1197 (2017) (concluding Court did not need to consider whether agency interpretation was due Chevron deference because that construction "best comport[ed] with [the statute's] text, context, and purpose"), and Dole v. United Steelworkers of Am., 494 U.S. 26, 43 (1990) (holding Chevron deference was inapplicable because "the statute, as a whole, clearly expresses Congress' intention"), with INS v. Cardoza-Fonseca, 480 U.S. 421, 454 (1987) (Scalia, J., concurring) (emphasizing that courts may not simply "substitute their interpretation of a statute for that of an agency whenever they face a pure question of statutory construction for the courts to decide") (internal quotation marks and citation omitted). See also Note, "How Clear is Clear" in Chevron's Step One?, 118 Harv. L. Rev. 1687, 1697 (2005) (arguing "Chevron imposes a standard of proof higher than" ordinary statutory interpretation because it shifts the question from "'What does the statute mean?'" to "'Is the statute clear?'").

160.

Compare Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650, 659-60 (D.C. Cir. 2011) ("Because at Chevron step one we alone are tasked with determining Congress's unambiguous intent, we answer [step one] inquiries without showing the agency any special deference."), and Abbott Labs. v. Young, 920 F.2d 984, 994-95 (D.C. Cir. 1990) (Edwards, J., dissenting) ("Underlying the majority's analysis is the assumption that if one can perceive any ambiguity in a statute, however remote, slight or fanciful, the statute must be pushed into the second step of Chevron analysis.... This fundamentally misconceives the point of Chevron analysis.... Minor ambiguities or occasional imprecision in language may be brooked under Chevron's first step, so long as traditional tools of statutory construction reveal Congress' intentions.") (internal quotation marks omitted), with Mexichem Fluor, Inc. v. EPA, No. 15-1328, 2017 U.S. App. LEXIS 14539, at *44 (D.C. Cir. Aug. 8, 2017) (Wilkins, J., concurring in part and dissenting in part) (stating it is a "high bar to show clear Congressional intent" at step one).

161.

See, e.g., Merrill & Hickman, supra note 39, at 860 (arguing that because Justice Scalia had "adopted an extremely aggressive conception of the judicial role at step one," he "invokes Chevron more consistently than other Justices, but also ends up deferring to agency views less than other Justices").

162.

See, e.g., Am. Water Works Ass'n v. EPA, 40 F.3d 1266, 1272 (D.C. Cir. 1994) ("Because we must examine the effective date provision in its statutory context in order to determine which meaning the Congress intended, we cannot say that either the NRDC's or the EPA's reading is the uniquely 'plain meaning' of the provision.").

163.

E.g., Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 2133 (2012) ("The [agency's] interpretation of the relevant provisions, adhered to without deviation for many decades, is at least reasonable; the agency's reading is therefore entitled to this Court's deference under Chevron."); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009) (stating agency's "view governs if it is a reasonable interpretation of the statute").

164.

E.g., Zuni Pub. Sch. Dist. No. 89 v. Dep't of Educ., 550 U.S. 81, 84 (2007) (phrasing the question before the Court as "whether the emphasized statutory language permits" the agency's reading).

165.

See Entergy Corp., 556 U.S. at 219-20 (holding statute did not "unambiguously preclude" agency interpretation); Nationsbank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 258 (1995) (holding that the agency "better comprehends the Act's terms").

Some scholars have invoked these decisions to argue that Chevron review consists of only one inquiry: "whether the agency's construction is permissible as a matter of statutory interpretation." Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597, 599 (2009). Cf. Richard M. Re, Should Chevron Have Two Steps?, 89 Ind. L.J. 605, 635 (2014) (arguing Supreme Court views step one as distinct but optional). Others have countered that Chevron's first step poses an important question regarding whether there is a single, mandatory reading of the statute that the agency is required to follow. E.g., Kenneth A. Bamberger & Peter L. Strauss, Chevron's Two Steps, 95 Va. L. Rev. 611, 624-25 (2009). As discussed later in the report, a step-one decision has important implications for an agency's ability to later change its reading of the statute, under Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005). See infra at "Agency Discretion to Change Course."

The D.C. Circuit has articulated a view of step one that might make sense of Supreme Court opinions that generally ask only whether an agency's interpretation is reasonable. See Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650, 659 (D.C. Cir. 2011) (defining Chevron step one to include two inquiries: whether Congress "prescrib[ed] a precise course of conduct other than the one chosen by the agency, or ... grant[ed] the agency a range of interpretive discretion that the agency has clearly exceeded").

166.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984).

167.

Id. at 844-45, 865-66; Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1287 (D.C. Cir. 2000) ("The reasonableness prong includes an inquiry into whether the agency reasonably filled a gap in the statute left by Congress.").

168.

See Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 58 (2011) ("[T]he second step of Chevron ... asks whether the Department's rule is a 'reasonable interpretation' of the statutory text.") (quoting Chevron, 467 U.S. at 844); Young v. Cmty. Nutrition Inst., 476 U.S. 974, 981 (1986) (noting that at Chevron's second step, a court is "preclude[d]" from "substituting its own judgement for that of the agency") (internal citations and quotations omitted).

169.

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009) ("That view governs if it is a reasonable interpretation of the statute—not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts."); Allied Local & Reg'l Mfrs. Caucus v. EPA, 215 F.3d 61, 71 (D.C. Cir. 2000) ("Under Chevron, we are bound to uphold agency interpretations as long as they are reasonable—'regardless whether there may be other reasonable, or even more reasonable, views.'") (quoting Serono Lab., Inc. v. Shalala, 158 F.3d 1313, 1321 (D.C. Cir. 1998)).

170.

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 388 (1999); Pharm. Research & Mfrs. of Am. v. FTC, 790 F.3d 198, 208 (D.C. Cir. 2015) (quoting Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650, 667 (D.C. Cir. 2011)).

171.

See Kent Barnett & Christopher Walker, Chevron in the Circuit Courts, 115 Mich. L. Rev. (forthcoming) (manuscript at 5-6) (concluding that agencies prevailed at Chevron's second step significantly more often than when cases were resolved at step one or when Chevron did not apply); see, e.g., Petit v. Dept. of Educ., 675 F.3d 769, 785 (D.C. Cir. 2012) ("As noted above, in order for Appellants to prevail on their Chevron step-two claim, we must find that the Mapping Regulations are 'manifestly contrary to the statute.'"); NRA of Am., Inc. v. Reno, 216 F.3d 122, 137 (D.C. Cir. 2000) (deferring to the agency under "Chevron step two's highly deferential standard").

172.

See, e.g., Zero Zone, Inc. v. Dep't of Energy, 832 F.3d 654, 668 (7th Cir. 2016).

173.

See, e.g., Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044, 1049 (D.C. Cir. 1997).

174.

See Chevron, 467 U.S. at 863-64 ("An initial agency interpretation is not instantly carved in stone. On the contrary, the agency ... must consider varying interpretations and the wisdom of its policy on a continuing basis."); Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996) ("[T]he whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency."); Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1287 (D.C. Cir. 2000) ("As long as the agency stays within [Congress's] delegation, it is free to make policy choices in interpreting the statute, and such interpretations are entitled to deference.") (quotations omitted) (quoting Arent v. Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995)).

175.

Judges and commentators have noted that the Chevron framework, at least at step two, merges judicial review of traditional legal interpretations of a statute's meaning with policy choices within (or without) the parameters of a statute's terms. See Laurence H. Silberman, ChevronThe Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 823 (1990) (noting that when agencies choose between competing interpretations of an ambiguous statute, "[t]hat sort of choice implicates and sometimes squarely involves policy making"); Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 Yale L.J. 2580, 2610 (2006) ("Chevron is best taken as a vindication of the realist claim that resolution of statutory ambiguities often calls for judgments of policy and principle."); Jeffrey A. Pojanowski, Without Deference, 81 Mo. L. Rev. 1075, 1083 (2016) (considering the implications of eliminating Chevron deference and separating judicial review of an agency's legal interpretation from policymaking).

176.

See Rust v. Sullivan, 500 U.S. 173, 186-87 (1991); see generally FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009) (ruling that when reviewing agency actions under the APA's "arbitrary" and "capricious" standard courts should not apply "more searching review" simply because an agency changed course).

177.

See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016); see generally CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by [author name scrubbed].

178.

Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).

179.

Id. at 982.

180.

Id.

181.

Id. at 981 ("Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.").

182.

Id.

183.

See Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 2133-34 (2012).

184.

See, e.g., Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1227-28 (11th Cir. 2009). Cases such as this arguably support the notion that Chevron ultimately consists of one step. See Stephenson & Vermeule, supra note 165, at 598 (arguing that Chevron's two steps ultimately merge into a single reasonableness inquiry).

185.

See, e.g., Nat'l Mining Ass'n v. Kempthorne, 512 F.3d 702, 710 (D.C. Cir. 2008); Kennecott Utah Copper Corp. v. U.S. Dep't of Interior, 88 F.3d 1191, 1206 (D.C. Cir. 1996).

186.

See, e.g., Consumer Fed'n of Am. v. Dep't of Health & Human Servs., 83 F.3d 1497, 1504-05 (D.C. Cir. 1996); Envtl. Def. Fund v. EPA, 82 F.3d 451, 467 (D.C. Cir. 1996); Republican Nat'l Comm. v. FEC, 76 F.3d 400, 406-07 (D.C. Cir. 1995); Madison Gas & Elec. Co. v. EPA, 25 F.3d 526, 529 (7th Cir. 1994); see M. Elizabeth Magill, Judicial Review of Statutory Issues Under the Chevron Doctrine, in A Guide to Judicial and Political Review of Federal Agencies 93-95 (2005).

187.

The Court has indicated that the analysis at Chevron step two can overlap with an arbitrary and capricious review under the APA. Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011); Zero Zone, Inc. v. Dep't of Energy, 832 F.3d 654, 668 (7th Cir. 2016) ("As the Supreme Court has noted, this second step of Chevron is functionally equivalent to traditional arbitrary and capricious review under the APA."); see also Arent v. Shalala, 70 F.3d 610, 616 n.6 (D.C. Cir. 1995) ("The Chevron analysis and the 'arbitrary, capricious' inquiry set forth in State Farm overlap in some circumstances, because whether an agency action is 'manifestly contrary to the statute' is important both under Chevron and under State Farm."). But see Humane Soc'y of the United States v. Zinke, Nos. 15-5041, 15-5043, 15-5060, 15-5061, 2017 U.S. App. LEXIS 13912, at *42-43 (D.C. Cir. Aug. 1, 2017) ("While analysis of the reasonableness of agency action under Chevron Step Two and arbitrary and capricious review is often the same, the Venn diagram of the two inquiries is not a circle. The question thus remains whether the agency arbitrarily and capriciously failed to consider an important aspect of the problem it faces.") (internal quotation marks and citations omitted). For more on the arbitrary and capricious standard of review, see CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by [author name scrubbed].

188.

Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 58 (2011) (upholding the agency's decisions at step two of Chevron because they furthered the purposes of the Social Security Act); Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 698 (1995) ("[T]he broad purpose of the [Endangered Species Act] supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid."); Troy Corp. v. Browner, 120 F.3d 277, 285 (D.C. Cir. 1997) ("Therefore, under Chevron, as the wording of the statute is at most ambiguous, the most that can be required of the administering agency is that its interpretation be reasonable and consistent with the statutory purpose."); Mueller v. Reich, 54 F.3d 438, 442 (7th Cir. 1995) (suggesting that because the statute is necessarily ambiguous when a court reaches step two of the Chevron test, "about all the court can do is determine whether the agency's action is rationally related to the objectives of the statute containing the delegation").

189.

Chevron, 467 U.S. at 866.

190.

See, e.g., Natural Res. Def. Council, Inc. v. EPA, 822 F.2d 104, 111 (D.C. Cir. 1987) (deferring to the EPA's interpretation because, given the overarching goals of the Clean Water Act, the EPA's regulation "reasonably balances and resolves the competing Congressional goals reflected in the provision"); Kennecott Utah Copper Corp. v. U. S. Dep't of the Interior, 88 F.3d 1191, 1213 (D.C. Cir. 1996) (concluding that the agency's construction was "not a reasonable interpretation of the statute, viewed with an eye to its structure and purposes").

191.

Cuozzo Speed Technologies, LLC v. Lee, 136 S. Ct. 2131, 2144-45 (2016).

192.

Id; Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1221 (9th Cir. 2015) (deferring at Chevron's second step because, among other things, the agency's position was "consistent" with its "longstanding policy").

193.

See Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044, 1049 (D.C. Cir. 1997) ("Under step one we consider text, history, and purpose to determine whether these convey a plain meaning that requires a certain interpretation; under step two we consider text, history, and purpose to determine whether these permit the interpretation chosen by the agency."); see supra "Chevron Step One."

194.

See, e.g., Your Home Visiting Nurse Servs., Inc., v. Shalala, 525 U.S. 449, 454 (1999); UC Health v. NLRB, 803 F.3d 669, 676 (D.C. Cir. 2015) (deferring at Chevron's second step because "[t]he Board's interpretation of the statute reads every clause of the statutory provision harmoniously").

195.

See, e.g., NationsBank of North Carolina, N.A., v. Variable Annuity Life Ins. Co., 513 U.S. 251, 258-59 (1995).

196.

See, e.g., Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1294 (D.C. Cir. 2000).

197.

See, e.g., Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 744-45 (1996); Sweet Home, 515 U.S. at 697.

198.

Village of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 666 (D.C. Cir. 2011) ("Although we would be uncomfortable relying on such legislative history at Chevron step one, we think it may appropriately guide an agency in interpreting an ambiguous statute—just how the Board used it here."); Am. Farm Bureau Fed'n v. EPA, 792 F.3d 281, 307 (3d Cir. 2015) ("[A]t Step Two we may consider legislative history to the extent that it may clarify the policies framing the statute.").

199.

See Barnett & Walker, supra note 171 (manuscript at 6) (finding that between 2003 and 2013, in cases where circuit courts applied Chevron deference to agency statutory interpretations, the agency prevailed approximately 25% more often than when Chevron did not apply); Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 Yale J. on Reg. 1 (1998) (determining that in 1995 and 1996 courts that reached step two of the Chevron test "upheld the agency view in 89% of the applications"); but see Richard J. Pierce Jr., What Do the Studies of Judicial Review of Agency Actions Mean?, 63 Admin. L. Rev. 77, 85 (2011) (reviewing various studies examining agency win-rates and concluding that "doctrinally-based differences in outcome are barely detectable").

200.

Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 87 Colum. L. Rev. 1093, 1121 (1986) ("By removing the responsibility for precision from the courts of appeals, the Chevron rule subdues this diversity, and thus enhances the probability of uniform national administration of the laws.").

201.

See City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013) (noting that adoption of the dissent's rule regarding Chevron's application would permit "[t]hirteen Courts of Appeals [to] apply[] a totality-of-the-circumstances test ...   and destroy the whole stabilizing purpose of Chevron").

202.

See generally Pojanowski, supra note 175 (noting that "[w]ith deference, the EPA can decide what the Clean Air Act means in all fifty states. Without it, critical provisions can mean different things in states covered by, say, the Ninth and Fifth Circuits," but cautioning that the concern over potential diverging statutory provisions may be "overblown"). Obviously, this consistency will hinge on the agency asserting consistent interpretations and a court finding that Chevron deference applies and the statutory provision is ambiguous.

203.

See Strauss, supra note footnote 200, at 1121; see Barnett & Walker, supra note 171 (manuscript at 68).

204.

See Barnett & Walker, supra note 171 (manuscript at 9) ("This may suggest that, in Chevron, the Supreme Court has an effective tool to supervise and rein in the lower courts in their review of agency statutory interpretations.").

205.

See id. (manuscript at 4) ("In other words, the Court's choice to apply Chevron deference, as opposed to a less-deferential doctrine or no deference at all, does not seem to affect the outcome of the case. Chevron deference—at least at the Supreme Court—does not seem to matter."); see generally Richard J. Pierce Jr., What Do the Studies of Judicial Review of Agency Actions Mean?, 63 Admin. L. Rev. 77, 85 (2011); William N. Eskridge Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretation from Chevron to Hamdan, 96 GEO. L.J. 1083, 1124–25 (2008).

206.

See, e.g., Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014).

207.

135 S. Ct. 2699 (2015).

208.

Id. at 2705-06.

209.

Id. at 2706-07.

210.

Id. The Court noted that, in contrast to the strict criteria for regulating other sources, the CAA directed the EPA to regulate power plants only if "appropriate and necessary." In addition, the Court noted that agencies have historically considered cost as a "centrally relevant factor when deciding whether to regulate.... [I]t is unreasonable to read an instruction to an administrative agency to determine whether 'regulation is appropriate and necessary' as an invitation to ignore cost." Id. at 2706-07. Finally, the Court pointed to the statutory context as indicative of "the relevance of cost" to the agency's decision. Id. at 2707.

211.

Id. at 2714 (Kagan, J., dissenting).

212.

Id.

213.

Compare id. at 2714 (Kagan, J., dissenting), with id. at 2710 (majority opinion).

214.

Sunstein, supra note 29, at 191 (asserting that the Chevron decision "has become foundational, even a quasi-constitutional text—the undisputed starting point for any assessment of the allocation of authority between federal courts and administrative agencies").

215.

See Hickman & Bednar, supra note 66, manuscript at 101.

216.

Scalia, supra note 44, at 517.

217.

See Hickman & Bednar, supra note 66, manuscript at 155-61.

218.

Chevron, 467 U.S. at 865-66; City of Arlington v. FCC, 133 S. Ct. 1863, 1886 (2013) (Roberts, J., dissenting) ("Chevron importantly guards against the Judiciary arrogating to itself policymaking properly left, under the separation of powers, to the Executive.").

219.

See Pojanowski, supra note 175, at 1077-78 (noting various critics of Chevron deference).

220.

See, e.g., Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1211-12 (2015) (Scalia, J., concurring in the judgment) ("Heedless of the original design of the APA, we have developed an elaborate law of deference to agencies' interpretations of statutes and regulations.").

221.

See, e.g.Michigan v. EPA, 135 S. Ct. 2699, 2712-14 (2015) (Thomas, J., concurring).

222.

Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2148 (2016) (Thomas, J., concurring).

223.

Michigan, 135 S. Ct. at 2712 (Thomas, J., concurring) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).

224.

Id. at 2713.

225.

Id. at 2712 (quoting United States v. Mead Corp., 533 U.S. 218, 229 (2001)).

226.

See, e.g.Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016); De Niz Robles v. Lynch, 803 F.3d 1165, 1171 (10th Cir. 2015).

227.

See Gutierrez-Brizuela, 834 F.3d at 1149-48 (Gorsuch, J., concurring). Judge Gorsuch also criticized the Court's opinion in Brand X, which instructs a court to defer to reasonable agency interpretations at Chevron step two, even if the court previously reached a different interpretation. He argued that the doctrine "risks trampling the constitutional design by affording executive agencies license to overrule a judicial declaration of the law's meaning ... without the inconvenience of having to engage the legislative processes the Constitution prescribes." Id. at 1151.

228.

Id. at 1152.

229.

Id.

230.

Id.

231.

Id. at 1153.

232.

Id. at 1154-55. For Judge Gorsuch, permitting an agency to issue and reverse regulations affecting large aspects of the economy, including its own jurisdiction to regulate at all, may not satisfy the "intelligible principle" test set forth by the Supreme Court in delegation cases. Id.

233.

See Waterkeeper All. v. EPA, 853 F.3d 527, 539 (D.C. Cir. 2017) (Brown, J., concurring) ("An Article III renaissance is emerging against the judicial abdication performed in Chevron's name.").

234.

See Egan v. Del. River Port Auth., 851 F.3d 263, 278-79 (3d Cir. 2017) (Jordan, J., concurring in the judgment).

235.

See Hon. Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2152 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)).

236.

For a survey of the literature criticizing Chevron deference, see Christopher J. Walker, Attacking Auer and Chevron: A Literature Review, 15 Geo. J. L. & Pub. Pol. (forthcoming 2018).

237.

See Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 930-62 (2017).

238.

See Jack M. Beerman, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779, 795 (2010).

239.

See Christine Kexel Chabot, Selling Chevron, 67 Admin. L. Rev. 481, 484 (2015); John F. Manning, Chevron and Legislative History, 82 Geo. Wash. L. Rev. 1517, 1551–52 (2014).

240.

See Lisa Schultz Bressman, Chevron's Mistake, 58 Duke L.J. 549, 551 (2009); Abbe R. Gluck, What 30 Years of Chevron Teach Us about the Rest of Statutory Interpretation, 83 Fordham L. Rev. 607, 619 (2014).

241.

See Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443, 1443-48 (2005); Adrian Vermeule, Introduction: Mead in the Trenches, 71 Geo Wash. L. Rev. 347, 347 (2003).

242.

See Gary Lawson & Stephen Kam, Making Law Out of Nothing at All: The Origins of the Chevron Doctrine, 65 Admin. L. Rev. 1, 4 (2013).

243.

See Evan J. Criddle, Chevron's Consensus, 88 B. U. L. Rev. 1271, 1283–91 (2008) (surveying these arguments).

244.

Pojanowski, supra note 175, at 1081; Michael Herz, Chevron Is Dead; Long Live Chevron, 115 Colum. L. Rev. 1867, 1870 (2015).

245.

See, e.g., Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144-45 (2016).

246.

Kavanaugh, supra note 235, at 2151 ("Perhaps in response to all of these criticisms, the Supreme Court itself has been reining in Chevron in the last few years."); Herz, supra note 244, at 1869 (noting that "[t]here is nothing remotely deferential about the majority opinion" applying Chevron's second step in Michigan v. EPA). See, e.g., King v. Burwell, 134 S. Ct. 2427, 2444 (2014); Michigan v. EPA, 135 S. Ct. 2699, 2606-08 (2015); Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014).

247.

See Michigan v. EPA, 135 S. Ct. 2699, 2712-14 (2015) (Thomas, J., concurring); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring).

248.

See supra "How Did the Agency Arrive at Its Interpretation?."

249.

See supra "Major Questions Doctrine."

250.

Compare Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2213 (2014) (Kagan, J., joined by Kennedy & Ginsburg, JJ.) ("This is the kind of case Chevron was built for. Whatever Congress might have meant in enacting § 1153(h)(3), it failed to speak clearly. Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law."), with id. at 2214 (Roberts, J., joined by Scalia, J., concurring in the judgment) ("To the extent the plurality's opinion could be read to suggest that deference is warranted because of a direct conflict between these clauses, that is wrong."), and id. at 2216 (Alito, J., dissenting) (agreeing with Chief Justice Roberts' critique of the plurality's reasoning).

251.

See, e.g., Whitman v. United States, 135 S. Ct. 352, 353 (2014) (statement of Scalia, J., joined by Thomas, J. respecting the denial of certiorari) (questioning whether "court[s] owe deference to an executive agency's interpretation of a law that contemplates both criminal and administrative enforcement"); Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1028 (6th Cir. 2016) (Sutton, J., concurring in part and dissenting in part) (arguing that the rule of lenity should take precedence over Chevron deference when a statute imposes criminal penalties), cert. granted, 137 S. Ct. 368 (2016), and rev'd sub nom. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017); Carter v. Welles–Bowen Realty, Inc., 736 F.3d 722, 729 (6th Cir. 2013) (Sutton, J., concurring); Scenic Am., Inc. v. Dep't of Transp., 836 F.3d 42, 57 (D.C. Cir. 2016), petition for cert. filed, (U.S. Dec. 5, 2016) (No.16-739); Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016), petition for cert. filed (U.S. Aug. 11, 2016) (No. 17-241).

252.

Pojanowski, supra note 175, at 1081. Compare City of Arlington v. FCC, 133 S. Ct. 1863, 1880-83 (2013) (Roberts, J., dissenting, joined by Kennedy & Alito, JJ.) (arguing that Chevron does not apply to an agency's determination of its own jurisdiction) with Michigan v. EPA, 135 S. Ct. 2699, 2712-14 (2015) (Thomas, J., concurring) (arguing that Chevron violates the separation of powers); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (same), and City of Arlington, 133 S. Ct. at 1875 (Breyer, J., concurring) (repeating his view of a functional test for determining whether Chevron deference applies).

253.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843-44 (1984) ("If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.").

254.

City of Arlington, 133 S. Ct. at 1868 (majority opinion). See also Barron & Kagan, supra note 36, at 212 ("Congress ... has the power to turn on or off Chevron deference.").

255.

5 U.S.C. § 706.

256.

See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1211 (2015) (Scalia, J., concurring) ("Heedless of the original design of the APA, we have developed an elaborate law of deference to agencies' interpretations of statutes and regulations. Never mentioning § 706's directive that the 'reviewing court ... interpret ... statutory provisions,' we have held that agencies may authoritatively resolve ambiguities in statutes."). See also Barron & Kagan, supra note 36, at 218 n.63 (noting that "some scholars have suggested" that 5 U.S.C. § 706 "requires independent judicial review of interpretive judgments, thus precluding Chevron deference," but concluding that instead, the APA "may well leave the level of deference to the courts, presumably to be decided according to common law methods, in the event that an organic statute says nothing about the matter").

257.

In fact, the U.S. House of Representatives, in 2016 and 2017, has twice passed the "Separation of Powers Restoration Act," intended to eliminate Chevron deference by amending 5 U.S.C. § 706 to require courts to "decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies." H.R. 5; H.R. 4768. H.R. 5 adds, "If the reviewing court determines that a statutory or regulatory provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an implicit delegation to the agency of legislative rule making authority and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency's interpretation on the question of law." Cf. Hickman & Bednar, Chevron's Inevitability, supra note 66, manuscript at 166 (evaluating whether amending APA would eliminate Chevron).

258.

Cf. Barron & Kagan, supra note 36, at 212 ("Although Congress can control applications of Chevron, it almost never does so, expressly or otherwise; most notably, in enacting a standard delegation to an agency to make substantive law, Congress says nothing about the standard of judicial review.").

259.

323 U.S. 134, 140 (1944). Congress also stipulated in a few other provisions of the act that courts should recognize that only one agency is authorized to "apply, enforce, interpret, or administer the provisions" of a specified area of law. See Kent Barnett, Codifying Chevmore, 90 N.Y.U. L. Rev. 1, 33 (2015). This might influence a court's decision on which agency is entitled to Chevron deference in that area of law. See id.

260.

See Barnett, supra note footnote 259, at 28 ("The legislative history [of Dodd-Frank] reveals that Congress understood that codifying Skidmore would lead to less deference than under Chevron."). See also supra notes 44- 46 and accompanying text.

261.

See Lusnak v. Bank of Am., N.A., No. CV 14-1855-GHK (AJWx), 2014 U.S. Dist. LEXIS 154225, at *12 (C.D. Cal. Oct. 29, 2014) ("Congress made clear that courts need not use Chevron deference for OCC decisions regarding NBA preemption."); Bate v. Wells Fargo Bank, N.A., 454 B.R. 869, 877 n.46 (Bankr. M.D. Fla. 2011) ("While not controlling in this case, it is noteworthy that Skidmore level deference has been incorporated in [Dodd-Frank]."). But cf. Powell v. Huntington Bank, 226 F. Supp. 3d 625, 637 (S.D. W. Va. 2016) (interpreting 12 U.S.C. § 25b(b)(5) as consistent with prior cases outlining non-Chevron standard for determining "when a relevant federal regulation, specifically an OCC regulation, conflicts with state law"); Lusnak, 2014 U.S. Dist. LEXIS 154225, at *12-13 ("But, ... this directive does not seem entirely new, as courts do not typically wholly rely on agency preemption determinations when deciding whether a state law is preempted.").

262.

See, e.g., supra note 243 and accompanying text.