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America University




For more than a quarter of a century, federal administrative law has been dominated by the so-called Chevron doctrine, which prescribes judicial deference to many agency interpretations of statutes. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,2 for which the doctrine is named, has become the most cited case in federal administrative law, and indeed in any legal field, 3 and the scholarship on Chevron could fill a small library.4 Love it5 or hate it,6 Chevron virtually defines modern administrative law.

Even after almost thirty years and thousands of recitations, unanswered questions about this Chevron framework abound. Does this framework involve two distinct analytical steps or just one unitary decision about the reasonableness of an agency's interpretation? 8 When is the intent of Congress "clear" on a "precise" question of statutory interpretation? 9 What might make an agency's statutory interpretation something other than a "permissible construction"?10 To what class of agency legal interpretations does this framework apply?II We do not intend to answer any of these questions here. Our goal is, rather, to help explain why such questions have proven so contentious and seemingly intractable despite decades of prodigious case law and scholarship on judicial review of agency legal interpretations. We suggest part of the problem is the continuing insistence, even by people who know better, on answering questions about the Chevron doctrine by invoking the Chevron decision. The two have very little to do with each other.



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