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

William S. Jordan, University of Akron Law School

Abstract

The U.S. Supreme Court's Chevron, U.S.A., Inc. v Natural Resources Defense Council, Inc. decision has dominated administrative case law and scholarship for nearly 20 years. In 1999, this dominance prompted the participants in the bi-annual Administrative Law Discussion Forum to plead that the next Forum topic be "anything other than Chevron!" At the 2001 Forum, however, Chevron again took center stage, driven to the fore by the Court's then-recent decisions in Christensen v. Harris County and United States v. Mead Corp.

One would think that after all this time and discussion we would know what Chevron means. Far from it. In 2001, Thomas Merrill's and Kristin Hickman's influential article, Chevron's Domain, identified 14 unanswered questions concerning the application of Chevron deference to agency statutory interpretation. Mead represented an opportunity to provide clear answers to at least one of these questions, and perhaps two others. n8 Unfortunately, as discussed below, Mead only confirmed the uncertainty as to when Chevron deference is available to agency statutory interpretations.

Mead might also have answered the following questions "1. Does Chevron apply to an agency that lacks legislative rulemaking authority? (An issue subject to conflict in the circuits.); and 2. Does Chevron apply to an agency that lacks both legislative rulemaking authority and the power to render adjudications having the force of law? (An unresolved issue.)." Merrill & Hickman, supra note 7, at 850. Although these questions were not directly at issue in Mead, one suspects that the Court could have provided clear answers in dicta in an effort to illuminate the Chevron landscape.

The Court's 2001 Term offers little hope that the discussion of Chevron will subside any time soon. The Court issued 12 decisions citing Chevron and two others involving the application of Chevron principles. Of those, seven involve the question of when Chevron applies to an agency interpretation. If anything, the Court has increased the confusion over how to decide whether Chevron applies to agency statutory interpretations. At least two decisions raise questions about either the nature of the judicial role in reviewing interpretations to which Chevron does not apply or the continued viability of Chevron deference. The remaining decisions involve disputes over whether the statute is ambiguous (Step One of Chevron analysis), whether, if the statute is ambiguous, the agency adopted a reasonable interpretation (Step Two of Chevron analysis), or whether the agency should prevail under Skidmore v. Swift & Co. deference. These topics are beyond the scope of this Article. It should be noted however that one decision, Verizon Communications, Inc. v. Federal Communications Commission, bears on the debate over the analytical method to be used in determining whether an interpretation is "reasonable" under Step Two of Chevron.