Academic journal article Harvard Law Review

Chevron and the Substantive Canons: A Categorical Distinction

Academic journal article Harvard Law Review

Chevron and the Substantive Canons: A Categorical Distinction

Article excerpt

In the years since the Supreme Court's 1984 decision Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (1) the intersection of Chevron's two-step deference regime with the various substantive canons of statutory interpretation has remained unsettled. (2) In the face of conflict between these two doctrinal frameworks, commentators have suggested that either the canons or the deference rule should displace the other entirely. (3) A more recent proposal has argued that this question should turn on a case-by-case analysis of the degree to which an agency's interpretation has taken into account the value protected by a given substantive canon. (4) To this point, the debate has largely ignored a categorical distinction in the way the canons operate. On the one hand, courts have used substantive canons as truly discretion-constraining clear statement rules. These canons require a clear statement in the statute itself that a disfavored outcome should result and are justified by a nondelegation account of their role. On the other hand, courts have used canons in more discretion-channeling ways. In this role, the canons ensure that courts conduct their interpretive processes with the norm protected by the canon in mind, justified on a limited "resistance norms" account. While giving priority to the canons over Chevron deference makes sense for canons in the first group, this same priority is not warranted for canons in the second group. Absent greater justification for these canons' continued use, courts should simply apply ordinary Chevron review to an agency interpretation even when a canon in this second group is implicated.

This Note proceeds in three parts. Part I outlines the doctrinal rules and justifications provided for both Chevron deference and the various substantive canons and explores some of the leading attempts to reconcile the two doctrinal frameworks. Part II analyzes the variation in application of the canons and suggests that a significant, categorical distinction exists between the discretion-constraining and discretion-channeling categories of canons. Finally, Part III outlines the implications of this distinction for the debate as to whether the canons or the deference rule should have priority in judicial review of agency statutory interpretation. It suggests that for a canon of the first type, like the rule against retroactivity, the current framework of denying Chevron deference is consistent with the canon's functioning outside the Chevron context. However, for a canon of the second type, like the presumption against preemption, it need not pose a special bar to deference to the agency view, absent greater justification of its countermajoritarian effects.

I. CHEVRON AND THE SUBSTANTIVE CANONS: DOCTRINE AND RATIONALE

A. An Overview of Chevron

The Chevron rule is at this point a familiar one. The deference doctrine asks courts to determine first "whether Congress has directly spoken to the precise question at issue," (5) and second, in the event there is ambiguity, "whether the agency's answer is based on a permissible construction of the statute." (6) After United States v. Mead Corp., (7) full deference now depends on a judicial determination that Congress, in effect, intended to delegate to the agency authority to resolve statutory ambiguity. (8) While Mead's standard for assessing this intent introduces some uncertainty into the Chevron deference regime, (9) Chevron-eligible interpretations still reallocate primary interpretive responsibility for resolving statutory ambiguity from the courts to the agencies.

Chevron deference to agencies finds potential support in a number of grounds. The principal justification has come to rest on the "attribution of a general intention to Congress that agencies be the front-line interpreters of regulatory statutes," (10) a justification the Court itself has highlighted in opinions such as Mead. (11) In Chevron itself, the Court emphasized institutional factors such as the specialized agencies' relatively greater technical expertise. …

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