Chevron as a Doctrine of Hard Cases

Frederick Liu

Abstract

The conventional wisdom holds that the Chevron doctrine rests on a presumption about congressional intent—a presumption that when a statute is ambiguous, Congress intended the gap to be filled by the agency charged with administering the statute. But the presumption is a mere fiction; Congress generally has no view on whether ambiguities in a statute should be resolved by the agency or the court. This Article proposes a new theory of Chevron, one that rests on a simple reality: No matter how determinate the law may seem, there will inevitably be hard cases—cases in which the law runs out before providing a solution. Legal positivism teaches that such cases cannot be decided by merely applying existing law. When the law runs out, the gap can be filled only by making new law. Positivism thus holds that there are two distinct stages in the process of deciding hard cases: applying the law and making it. This Article argues that these two stages correspond to Chevron’s two steps. Step One is the ordinary, law-applying stage of any case of statutory interpretation. Step Two is the law-making stage, when a court would typically have no choice but to make law on its own. But the presence of an administrative construction means that the court can exercise its law-creating discretion by deferring to the agency, a law-maker that, unlike the court, is accountable to the political branches. Viewed in this light, deference emerges as an act of judicial self-restraint, grounded in the recognition that the law carries greater legitimacy when made by politically accountable agencies than by unelected judges. This positivist account of Chevron elucidates the doctrine’s familiar two-step inquiry, shedding light on longstanding questions about the doctrine’s application. It also answers recurring objections to judicial deference more generally, including the claim that such deference conflicts with the Constitution. Finally, understanding Chevron as a doctrine of hard cases has important implications for the scope of Chevron’s domain.