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William & Mary Law Review Online

Abstract

This essay proposes that the Court overrule the Chevron two-step standard of review of agency statutory construction and replace it by reviving deference under the factors announced in the Skidmore case with a twist that preserves Chevron’s greatest virtue: agency freedom to alter its statutory interpretations so long as the agency remains within the zone of reasonable construction. This essay also proposes that the Court clarify the boundary between cases involving statutory construction and cases involving agency policy decisions that are reviewed under the arbitrary and capricious standard articulated in cases such as Motor Vehicles and Overton Park. On this matter, this essay proposes that this boundary be drawn based on a straightforward and, in my view, simple inquiry into whether the case centers on the correct understanding of a statute (where the Skidmore factors would apply) or the policy implications of the agency’s actions (where arbitrary, capricious review would apply). In my view, this understanding is relatively easy for courts and litigants to apply, is consistent with the structure established by the Administrative Procedure Act (APA), and would focus judicial review on the issues that ought to matter to the parties and the courts.

This essay proceeds as follows. Part I briefly describes the Loper Bright case and the issues involved. Part II examines the current status of Chevron deference, including the turmoil evident in lower federal courts over the correct application of Chevron, the problem of the boundary between Chevron and arbitrary and capricious review, and my proposed solution to both sets of problems. Part III looks at other areas of law with similar problems created by the lack of clarity at the Supreme Court level and discusses proposals made by academic amici in the Loper Bright litigation. Part IV concludes by urging the Court to turn over a new leaf and provide clarity on the status of important doctrines of federal law that appear to be disfavored at the Supreme Court.

This abstract has been taken from the author's introduction.

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