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New article by Coglianese clarifies and bolsters controversial administrative law doctrine

December 18, 2017

In its 1984 ruling in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court established a framework under which the courts defer to administrative agencies’ reasonable interpretations of unclear or ambiguous statutes. The Chevron decision has become one of the most central of all decisions in administrative law. Today, it is also one of the most controversial.

Some critics of Chevron deference — among them, the newest Supreme Court Justice, Neil Gorsuch — view the doctrine as an abdication of the judiciary’s responsibility to make an independent determination of a statute’s meaning. Still others object to what they view as the Supreme Court’s inconsistent application of the Chevron doctrine.

Contributing the Foreword to this year’s administrative law issue of the George Washington Law Review, Penn Law professor Cary Coglianese argues that Chevron’s critics misunderstand the doctrine.

Coglianese is the Edward B. Shils Professor of Law and Professor of Political Science, as well as the Director of the Penn Program on Regulation and the founder of The Regulatory Review. He specializes in administrative law and the study of regulatory processes, with an emphasis on the empirical evaluation of alternative regulatory strategies and the role of public participation, negotiation, and business-government relations in policy making.

He shows in his article, entitled “Chevrons Interstitial Steps,” how the conventional view of Chevron’s simple two-step framework — (1) Is a statute clear?, (2) If not, is the agency’s interpretation of the statute reasonable? — ignores an important series of steps that exist between steps 1 and 2. Coglianese explains that when these “interstitial steps” are taken into account, the objections to Chevron start to ring hollow.

His analysis shows that the doctrine both makes much more sense and is more defensible than previously acknowledged. “When Chevron is properly conceived …, the logic behind Chevron deference fares better as both a doctrinal and normative matter,” he writes.

In his article, Coglianese gives close scrutiny to the structure and reasoning of the Court’s opinion in Chevron, as well as those in subsequent key cases, including King v. Burwell, the case in which the Court upheld the legality of the Affordable Care Act. He shows that the Court has made clear that judges must evaluate a series of questions between Step 1 and Step 2 to determine whether Congress has delegated gap-filling authority to the agency. These questions include whether the ambiguous statute presents extraordinary circumstances that make it implausible that Congress would have wanted an agency to determine the meaning of the provision.

“Rather than seeing Chevron as directing courts to retreat from deciding the relevant legal questions, the Interstitial Steps reveal what those relevant questions are, and they show the work that judges must undertake in cases involving agency interpretations of statutes,” he writes in the Foreword.

“A mere finding of statutory ambiguity does not ineluctably justify deference to an agency’s reasonable interpretation,” he notes. “The Interstitial Steps provide the legal framework for determining when deference is justified: only when Congress has explicitly or implicitly delegated interpretive authority to the agency.”

In addition, Coglianese argues that when Chevron’s interstitial steps are made evident, the Supreme Court’s application of the doctrine becomes more consistent than critics acknowledge.

Coglianese assesses the Chevron framework with interstitial steps against several alternative frameworks proposed by other legal scholars: namely, one that interposes a “Step 0” before Steps 1 and 2, as well as another one which collapses Steps 1 and 2 into a single step. He argues against both alternatives, explaining why a so-called Step 0 is misplaced and why efforts to collapse Chevron’s multiple steps ultimately fail.

“If the Court and the Congress — and the scholarly community — more openly recognized these Interstitial Steps, critics would be less quick to treat Chevron as a doctrine in need of retirement,” he suggests. “Recognizing these steps mitigates the concern that Chevron automatically substitutes agency interpretation for judicial judgment whenever a statute governing that agency is ambiguous.”

“Given the controversy surrounding the Chevron doctrine’s future, at the very least the doctrine and its rationale should be better understood,” he concludes.

Professor Coglianese’s article can be downloaded from his SSRN research page.