PDF《Chevron's Two Steps》

s utility as a framework for circumscribing the appropri- ate scope of independent judicial decisionmaking more generally, including in those cases in which a court must resolve a statute'

s meaning before an agency has exercised its interpretive authority in a format entitled to Chevron deference. Second, Stephenson and Vermeule propose shoehorning Step Two'

s judicial oversight function into what they term standard hard look review under the Supreme Court'

s State Farmdecision,'

lest courts take an unjustified departure from the standard ap- proach in the Chevron arena.8 While the scope of their fears is not fully articulated, their formulation neglects the reality that the courts'

oversight role under Section 706(2)(A) of the Administra- tive Procedure Act9 varies with context. Not all agency decisions Matthew C. Stephenson &

Adrian Vermeule, Chevron Has Only One Step,

95 Va. L. Rev.

593 (2009). Id. at 593-94. '

See infra Section II.A, discussing the issues raised by such cases in light of the Su- preme Court'

s decision in NationalCable &

TelecommunicationsAssociationv. Brand X InternetServices,

545 U.S.

967 (2005). '

Motor Vehicle Mfrs. Ass'

n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 42-44 (1983). Stephenson &

Vermeule, supra note 4, at 602-03. 5U.S.C. §706(2)(A) (2006).

612 [Vol. 95:611 HeinOnline --

95 Va. L. Rev.

612 2009 Chevron'

s Two Steps that are reviewed for reasonableness, whether or not they in- volve statutory interpretation as an element, invite hard look re- view. Moreover, that formulation needlessly points away from the possibility of important Chevron-specific elements of the courts'

supervisory role over the process of agency interpretation. It fur- ther constrains the judicial use of deference as an important tool for promoting an agency'

s employment of particular decisionmak- ing procedures in reaching interpretive choices that would not arise in the context of vanilla hard look review. I. STEPHENSON AND VERMEULE'

S ONE-STEP CHEVRON PROPOSAL Stephenson and Vermeule marshal three valuable insights re- garding Chevron'

s standard. First, they correctly distinguish two distinct analytic elements of judicial review of agency interpreta- tions. These they call the interpretive question (involving the permissibility of an agency construction in light of statutory lan- guage) and the decisionmaking question (regarding the reason- ableness of the process by which a permissible construction was reached).

0 We would simply call these Step One and Step Two. Second, they offer compelling support for the notion that the question whether a statute evidences clear congressional intent and the question whether an agency interpretation falls outside the area of discretion committed to its charge by reason of statutory ambiguity are interrelated elements of the independent judicial task -despite the fact that the latter inquiry has sometimes been located by courts in Chevron'

s second step.

2 Indeed, Chevron'

s language about the precise question at issue '

has misled many, Stephenson &

Vermeule, supra note 4, at 600. Id. at 594. 12An example can be found in MCI Telecommunicationsv. American Telephone &

Telegraph, which asks, at what is identified (misleadingly in our view) as Step Two of its Chevron analysis, whether an agency'

s interpretation of an ambiguous statute goes beyond the meaning that the statute can bear.