Chevron Step Two's Domain

Kent Barnett* & Christopher J. Walker**

An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Article explores how circuit courts have applied Chevron step two to invalidate agency statutory interpretations. In doing so, it identifies three separate approaches that merit further theoretical and doctrinal development: (1) a more-searching textualist or structuralist inquiry into the statutory ambiguity in light of the whole statute; (2) an enhanced purposivist or contextualist inquiry; and (3) an inquiry into an agency’s reasoned decisionmaking similar to arbitrary-and-capricious review under the Administrative Procedure Act.

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© 2018 Kent Barnett & Christopher J. Walker. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor, University of Georgia School of Law.

**Associate Professor, The Ohio State University Moritz College of Law. Thanks to our research assistants Megan Cambre and Graham Newsome. We also appreciate helpful comments from the participants at Notre Dame Law Review’s Symposium “Administrative Lawmaking in the Twenty-First Century,” including moderator Patricia Bellia and Kristin Hickman.