PDF《Chevron's Two Steps》

Berkeley Law Berkeley Law Scholarship Repository Faculty Scholarship 1-1-2009 Chevron'

s Two Steps Kenneth A.

Bamberger Berkeley Law Peter L. Strauss Follow this and additional works at: https://scholarship.law.berkeley.edu/facpubs Part of the Law Commons This Article is brought to you for free and open access by Berkeley Law Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected]. Recommended Citation Chevron'

s Two Steps,

95 Va. L. Rev.

611 (2009) CHEVRON'

S TWO STEPS Kenneth A. Bamberger* and PeterL. Strauss T HE framework for judicial review of administrative interpreta- tions of regulatory statutes set forth in the landmark Chevron U.S.A. v. NaturalResources Defense Council'

decision prescribes two analytic inquiries, and for good reason. The familiar two-step analysis is best understood as a framework for allocating interpre- tive authority in the administrative state;

it separates questions of statutory implementation assigned to independent judicial judg- ment (Step One) from questions regarding which the courts'

role is limited to oversight of agency decisionmaking (Step Two).2 The boundary between a reviewing court'

s decision and over- sight roles rests squarely on the question of statutory ambiguity. For while courts, using traditional tools

3 of statutory interpreta- tion, should decide directly whether statutory language permits or clearly excludes the possibility of a given agency interpretation, judges must withdraw to a supervisory role when agency choices fall within a zone of ambiguity left by congressional instructions. In that oversight role, courts may ask whether an agency employed appropriate processes or reasoning in making an interpretive choice. But if the choice was reached in a reasonable manner, judges must let the administrative interpretation stand. Thus defin- ing the areas of ambiguity within which agencies possess primary interpretive authority constitutes a-if not the-central component of judges'

independent Step One task. *Assistant Professor of Law, University of California, Berkeley, School of Law (Boalt Hall). Many thanks to Eric Biber, Ronald Levin, Melissa Murray, Anne Jo- seph O'

Connell, Martin Shapiro, and Molly Van Houweling for discussion and com- ment. - Betts Professor of Law, Columbia University. -467 U.S.

837 (1984).

2 See Peter L. Strauss, Overseers or The Deciders -The Courts in Administrative Law,

75 U. Chi. L. Rev. 815,

817 (2008). '

Chevron,

467 U.S. at

843 n.9. HeinOnline --

95 Va. L. Rev.

611 2009 VirginiaLaw Review Professors Stephenson and Vermeule'

s provocative essay on this issue'

offers several important observations regarding inconsisten- cies evident in the doctrinal formulations employed by courts ap- plying Chevron'

s framework for judicial review. Yet it ultimately proposes two doctrinal alterations that threaten greater problems than any it seeks to resolve. First, the essay suggests collapsing Chevron'

s independent judi- cial task into a unitary inquiry into the reasonableness of the agency'

s statutory interpretation,

5 with no explicit mention of statutory clarity. Removing the charge that judges deal squarely with the key question of ambiguity muddies Chevron'

s task- allocation function, thus distracting courts from an essential judi- cial function: that of bounding agency authority. In so doing, it in- vites courts to elide the constraints Chevronrightly imposes on the scope of independent judicial construction of regulatory statutes and undermines the utility of judicial decisions reviewing agency action as guides for future administrative choices. It also blunts Chevron'