Author(s): Kenneth A. Bamberger
Year: 2008
Abstract:
Contrary
to a suggestion by Professors Matthew Stephenson and Adrian Vermeule
(“Chevron has Only One Step,” forthcoming in Va. L. Rev.), Chevron v.
NRDC’s model for judicial review of agency interpretations of regulatory
statutes involves two “steps” – and for good reason. The two-step
analysis provides a framework for allocating interpretive authority in
the administrative state, by separating those questions of statutory
implementation assigned to independent judicial judgment (Step One) from
those regarding which courts’ role is limited to oversight of agency
decisionmaking (Step Two).
At
Chevron’s first step, courts should begin by identifying whether
congressional instructions clearly either require or preclude a choice
the agency has made or, instead, whether the agency’s choice falls
within a range of possibilities permitted by language that Congress has
left ambiguous. Agency interpretations that do not fall within the zone
of indeterminacy permitted by the statute’s language must be struck
down. Once courts determine, however, that the existence of ambiguity
has placed primary authority for a matter in agency hands, and that the
scope of that ambiguity permits the agency choice, the judicial role
moves from decision to oversight, and thus to Chevron’s second step. At
this step, Section 706(2) of the Administrative Procedure Act sets the
general standard, and courts inquire as to whether the agency’s judgment
on a matter within its delegated authority is “reasonable.”
Keywords: Chevron, judicial review, administrative action, statutory interpretation, State Farm, arbitrary and capricious, APA Section 706, Brand X
Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1300001