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Unpublished Paper
Bridging the Divide: Finding Common Ground on the Modern Chevron Debate
  • Nicholas C Stewart

Traditionally, when reviewing an administrative agency’s adjudication or rulemaking under National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944), courts would ask whether the question before them was one of law or a mixed question of law and fact. While the former was accorded no deference, the latter received a great deal. Despite this seemingly simple construct, courts persistently confused questions of law with mixed questions, and vice versa, resulting in the inconsistent application of standards of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court drastically changed the conversation, but Chevron had problems of its own. Judges and litigants began to regularly debate not just how, but also when to apply Chevron. The leading voices in this contest were Justices Stephen Breyer and John Paul Stevens squaring off against Justice Antonin Scalia.

This article posits that these Justices may be understood as disagreeing over the continued relevance, if any, of Hearst’s distinction between questions of law and mixed questions. It avers that both sides are flawed and instead argues for a hybrid approach, which retains the courts’ responsibility to say what the law is. Borrowing heavily from Professor Ronald Levin, courts should apply Chevron-like two-step framework to questions arising out of most adjudications and rulemakings. At step one, they should decide whether and to what extent the legislature delegated a statute’s interpretation or application to an agency. This question is always one of law and answered independently. If the legislature used the well-known fiction of ambiguity, then it is fair to say that the question – even if purely legal in a traditional sense – was entrusted to the agency and is actually a “question of discretion.” Thus, courts should move on to step two and review it under a deferential standard that subsumes both the arbitrariness and substantial evidence standards. This article closes with a case study that demonstrates the model’s clarifying potential on Maryland administrative law jurisprudence.

Publication Date
Citation Information
Nicholas C Stewart. "Bridging the Divide: Finding Common Ground on the Modern Chevron Debate" (2012)
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