Running on Empty: Will Exxon Mobil Causea Breakdown for Chevron and theAdministrative State?

I. IntroductionChevron U.S.A. Inc. v. Natural Resource Defense Council, Inc. is the most cited decision in all of administrative law.2 The significance of Chevron jurisprudence to modern administrative law cannot be overstated: The doctrine shapes the federal courts' approach to practically all statutory interpretation questions when assessing administrative action.3 Since the Supreme Court handed down this landmark decision, however, the Court's philosophical approach to statutory interpretation has undergone a dramatic transformation into hypertextualism.4 Hypertextualism occurs whenever a court relies on a technical construction of a phrase or word, even when it appears that such a construction contradicts congressional intent. This shift to hypertextualism could have unintended effects on Chevron jurisprudence. The connecting factor is ambiguity. Hypertextualism discourages judges from finding ambiguity except in the most extreme situations,5 while Chevron deference depends on a broader concept of ambiguity.6 The two approaches therefore are incompatible. Further, hypertextualism threatens the efficiency of administrative agencies, undermines agencies' autonomous decisionmaking and thwarts textualist objectives.7This Note presents the Supreme Court's recent decision in Exxon Mobil Corp. v. Allapattah Services., Inc.* as a decision that solidified the Court's adoption of a hypertextualist approach to statutory interpretation. The debate over the textualist approach versus the pragmatic approach is a constant in the field of statutory interpretation.9 Much of the scholarly debate about statutory interpretation centers on the use of legislative history as a tool of statutory interpretation10-simply stated, in the face of an ambiguous statute, textualists forbid its use and intentionalists encourage it." Ambiguity-specifically, its absence-is therefore an issue of critical importance for the textualist approach. But, ambiguity is a core concept for the Chevron doctrine: The central question in Chevron's "step one" is whether the statute is ambiguous.12 Without ambiguity, a court will never advance to step two of Chevron and recognize the agency interpretation as controlling.13 Ambiguity liberates the agency.To illustrate the unintended consequences hypertextualism may have on the modern administrative state, consider a paraphrased version of a hypothetical posed by Professor Richard Pierce. Congress charges an agency with implementing a statute that has three provisions, A, B, and C, each of which can support two meanings, 1 and 2.14 The agency interprets the provisions to mean Al, Bl, and Cl, because it perceives programmatic advantages to that particular construction.15 Decades later, a court reviews the agency's interpretation under Chevron, and finds the "plain meaning" of the statute to be A2, Bl, and Cl, thus disregarding the agency's Al interpretation.16 Later, a different circuit court finds the "plain meaning" in fact to be A2, B2, and Cl.17 Consequently, the agency will be forced to implement its statutory mission in two different ways in two circuits.18 If the Supreme Court then determines that the "plain meaning" is in fact Al, B2, and Cl, the agency may not be able to perform its mission at all.19One may not find statutory interpretation trends or the continued vitality of administrative law doctrines to be of pressing concern. Consider, however, a more tangible example. Many rights granted to citizens by Congress hinge upon the chosen construction of a particular statute or a definition of a key term. For instance, are you a lawyer, faculty member, librarian, engineer, or architect? Then the collective bargaining and organizational rights of your profession and many others depend upon the appropriate construction of the National Labor Relations Act (NLRA). Congress enacted the NLRA to provide employees with legal protection to freely associate, organize, and bargain collectively to negotiate terms and conditions of employment. …