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.SeeCRS Report RL32240, The Federal Rulemaking Process: An Overview, coordinated by Maeve P. Carey.
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.SeeCity 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 alsoElena 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, seeCRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole.
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 at146); 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), //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 & Williamsonto 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), //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.CompareCoventry 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.SeeChevron, 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. SeeLaurence H. Silberman, Chevron—The 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.SeeRust 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 generallyCRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole.
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, seeCRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole.
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 note171 (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.SeeCity 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.Seeid. (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,supranote 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.