PDF《Chevron's Two Steps》

512 U.S. 218,

229 (1994). This point was made earlier by Ronald Levin, who calls these cases belatedly discovered Step One decisions, in that they ultimately rest on a determination of the boundary of le- gitimate agency discretion created by statutory ambiguity, the core Step One ques- tion. See Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered,

72 Chi.-Kent L. Rev. 1253, 1280-86 (1997). Chevron,467 U.S. at 842. 2009] HeinOnline --

95 Va. L. Rev.

613 2009

614 VirginiaLaw Review [Vol. 95:611 both judges and commentators, to characterize Step One as if its function were exhausted once a court has found statutory ambigu- ity-that courts only look for themselves for point solutions, leav- ing the rest to the agency under Step Two. Professors Stephenson and Vermeule start their analysis as if that were the obvious mean- ing of the case, a posture that gives their critique greater intuitive appeal. They then, however, present a model that reveals the judi- cial function to be that of bounding ambiguity, rather than of iden- tifying single solutions. They also subsequently acknowledge that [s]ome courts and commentators ... interpret[] the content of the two steps differently '

--that is, Step One as judicial ascertainment of the range of meaning available to the agency;

Step Two as re- view of any agency determination falling within that range. We are among this latter group. Third, following a line of scholarship begun by Ronald Levin, they properly note the correspondence of the judicial oversight role traditionally exercised under Chevron with the general arbi- trary, capricious, [or] abuse of discretion standard for performing that function under Section 706(2)(A) of the Administrative Pro- cedure Act.

6 In explicating these insights, however, they propose revisions to the doctrine guiding each of Chevron'

s interpretive and deci- sionmaking steps. They first argue that the two interpretive inquiries Chevron identifies-first, whether a statute resolves clearly or displays am- biguity regarding the precise issue raised by the agency interpreta- tion, and second, whether the agency'

s cho........