Academic journal article Harvard Law Review

The Two Faces of Chevron

Academic journal article Harvard Law Review

The Two Faces of Chevron

Article excerpt

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (1) the Supreme Court opinion that increased the level of deference given by courts to administrative agencies in their interpretation of statutory language, has generated a substantial body of legal scholarship. (2) A large portion of the scholarly ink spilled has been devoted to unearthing the principle that motivates the familiar two-step deference inquiry. The scholarship has settled into two roughly defined camps. One camp argues that Chevron is a separation of powers decision, designed to prevent the courts from interfering with tasks delegated by Congress to the executive branch--designed, in other words, to abide by and police congressional intent. (3) The other camp believes that Chevron deference is driven by the greater competence and experience that agencies have relative to courts in interpreting the statutes the agencies are charged with implementing--what this Note refers to as "expertise." (4) Of course, there are also commentators who see both dynamics at work in Chevron. (5)

Almost all of these scholars view Chevron doctrine as a monolith, either by focusing entirely on the doctrine as developed in the Supreme Court or by treating applications of Chevron by the Supreme Court and the lower courts as threads in the seamless fabric of the law. (6) It distorts the picture of Chevron doctrine to ignore the circuit courts of appeals, the final stage of review for most Chevron cases. (7) Moreover, disaggregating Chevron opinions by the courts that issue them reveals an interesting phenomenon: the Supreme Court's Chevron jurisprudence seems motivated primarily by separation of powers concerns, with agency expertise relevant only at the margins of the doctrine, whereas in the circuit courts, expertise plays a more central role in the deference decision.

Some divergence between the doctrine espoused by the Supreme Court and the doctrine as applied by the lower courts is to be expected. There are many cases to which Supreme Court precedent does not squarely apply, and the lower courts must fill in the gaps. Likewise, it would not be surprising to find some variation as different courts interpret the Supreme Court's sometimes vague language. But despite this doctrinal noise, a noticeable pattern emerges in the way that the courts of appeals apply Chevron: they have come to rely on agency expertise in more contexts, and more heavily, in deciding the degree of deference to provide to agency interpretations than the Supreme Court does. It is important to note, however, that the expertise-heavy Chevron inquiry is a plausible interpretation of the Supreme Court's jurisprudence--it is just not the way the Supreme Court has approached the inquiry. After considering a variety of explanations for the divergence in approaches, this Note concludes that the courts of appeals' reliance on expertise is highly pragmatic: the courts of appeals review agency interpretations with much greater frequency and in a greater variety of contexts than the Supreme Court does, and the consideration of expertise allows the lower courts more flexibility in dealing with this mass of cases.

This Note proceeds as follows. Part I discusses in detail the role that expertise has played in the Supreme Court's jurisprudence on the review of agency interpretations of statutes and concludes that a consideration of agency expertise comes into play only at the margins of the inquiry. In some circumstances, it may be considered as part of the Mead (8) threshold test, and it is part of the Skidmore (9) standard that applies if Chevron deference does not. Expertise also serves a nonfunctional role as an implied motivation for the congressional delegation to the agency that is the real focus of the Supreme Court's Chevron inquiry. Part II reviews the jurisprudence of the federal courts of appeals and finds three distinct ways in which they have given a more prominent role to expertise than the Supreme Court has. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.