Chevron Step Zero

The most famous case in administrative law, Chevron U.S.A. v. Natural Resources Defense Council, Inc., has come to be seen as a counter-Marbury, or even a McCulloch v. Maryland, for the administrative state. But in the last period, new debates have broken out over Chevron Step Zero—the initial inquiry into whether Chevron applies at all. These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference question. In the last decade, Justice Breyer’s case-by-case view has enjoyed significant victories. Two trilogies of cases—one explicitly directed to the Step Zero question, another implicitly so directed—suggest that the Chevron framework may not apply (a) to agency decisions not preceded by formal procedures and (b) to agency decisions that involve large-scale questions about agency authority. Both of these trilogies threaten to unsettle the Chevron framework, and to do so in a way that produces unnecessary complexity for judicial review and damaging results for regulatory law. These problems can be reduced through two steps. First, courts should adopt a broader understanding of Chevron’s scope. Second, courts should acknowledge that the argument for Chevron deference is strengthened, not weakened, when major questions of statutory structure are involved. Over twenty years after its birth, the Supreme Court’s decision in Chevron U.S.A. v. Natural Resources Defense Council, Inc.1 shows no sign of losing its influence. On the contrary, the 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. Ironically, Justice Stevens, the author of Chevron, had no broad ambitions for the decision; the Court did not mean to do anything dramatic.2 But shortly after it appeared, Chevron was quickly taken to establish a new * Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. I am grateful to Douglas Lichtman, Richard Posner, Adrian Vermeule, and participants in the work-in-progress lunch at the University of Chicago Law School for valuable comments on a previous draft. Blake Roberts provided valuable research assistance. 1 467 U.S. 837 (1984). As a sign of Chevron’s influence, consider the fact that the decision was cited 2,414 times in its first decade (between 1984 and January 1, 1994), 2,584 times in its next six years (between January 1, 1994 and January 1, 2000), and 2,235 times in its next five years (between January 1, 2000 and January 28, 2005). LEXIS search, March, 2005. 2 See Robert Percival, Environmental Law in the Supreme Court: Highlights from the Marshall Papers, 23 ENVTL. L. REP. 10606, 10613 (1993). In fact it is possible, and fascinating, to trace a series of opinions in which Justice Stevens expressed reservations about the broad reading of Chevron, and attempted to domesticate the decision. See, e.g., Young v. Community Nutrition Institute, 476 U.S. 974, 985 (1986) (Stevens, J., dissenting); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Babbitt v. Sweet Home Chapter of approach to judicial review of agency interpretations of law,3 going so far as to establish a kind of counter-Marbury for the administrative state. It seemed to declare that in the face of ambiguity, it is emphatically the province and duty of the administrative department to say what the law is.4 Chevron also appeared to have imperialistic aspirations, cutting across countless areas of substantive law and the full range of procedures by which agencies might interpret statutory law. Some of those ambitions have been realized, for Chevron has had a fundamental impact on areas as disparate as taxation,5 labor law,6 environmental protection,7 immigration,8 foods and drugs,9 and highway safety.10 In all of these areas, and many more, Chevron has signaled a substantial increase in agency discretion to make policy through statutory interpretation. For this reason, Chevron might well be seen not only as a kind of counter-Marbury, but even more fundamentally as the administrative state’s very own McCulloch v. Maryland,11 permitting agencies to do as they wish so long as there is a reasonable connection between agency choices and congressional instructions. This grant of permission seemed to depend on a distinctive account of legal interpretation, one that sees resolution of statutory ambiguity as involving judgments of principle and policy, and insists that the executive, not the courts, should be making those judgments.12 Communities for a Great Oregon, 515 U.S. 687 (1995). See also Christensen v. Harris County, 529 U.S. 576, 595 n.2 (2000) (Stevens, J., dissenting) (endorsing “fully” Justice Breyer’s narrow reading of Chevron). 3 See, e.g., Kenneth Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. REG. 283 (1986); Richard Pierce, Chevron and its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions, 41 VAND. L. REV. 301 (1988). On the real-world consequences of Chevron, see Peter Schuck and E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 42 DUKE L.J. 984 (1989). Schuck and Elliott find a significant effect from Chevron, an increase in affirmance rates from 71% in the pre-Chevron year of 1984 to 81% in the post-Chevron year of 1985. Over more extended periods, studies are hard to conduct, because prospective litigants will adjust their mix of cases to the rules governing judicial review of agency action; when challenges are hard to sustain under doctrines of deference, fewer challenges will be brought. On the other hand, agencies and their lawyers may adjust their own practices to deference doctrines as well, and hence take legal risks that they would not assume if courts were less likely to defer. Relevant findings, exploring the importance of whether a panel is composed of Republican or Democratic appointees to the application of Chevron, can be found in Frank Cross and Emerson Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155 (1998) (finding that allRepublican panels are particularly willing to strike down agency action at the behest of an industry challenge, notwithstanding Chevron). 4 See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the laws is.”). 5 Atlantic Mutual Ins. Co. v. Commissioner, 523 U.S. 382 (1998); Tate & Lyle v. Commissioner, 87 F.3d 99 (3d Cir. 1996). 6 See NLRB v. United Food Workers Union, 484 U.S. 112 (1987); Cavert Acquisition Co. v. NLRB, 83 F.3d 598 (3d Cir 1996). 7 See Chemical Manufacturers Association v. NRDC, 470 U.S. 116 (1985). 8 See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). 9 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996). 10 Geier v. American Honda Motor Co., 529 U.S. 861 (2000). 11 17 U.S. 316 (1819). 12 See infra notes 40-44.