The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

Congressional research reportMay 26, 2010

Ask Donna

What actually matters in this document.

Text

The Jurisprudence of Justice John Paul

Stevens: The Chevron Doctrine

name redacted

Legislative Attorney

May 26, 2010

Congressional Research Service

7-....

www.crs.gov

R41260

CRS Report for Congress

Prepared for Members and Committees of Congress

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

Summary

One of Justice John Paul Stevens’s most lasting jurisprudential legacies is his opinion in

Chevron v. Natural Resources Defense Council. The 1984 case, a landmark decision in both

administrative law and separation of powers, established the legal framework that has largely

governed the degree of deference a court will accord a federal agency in interpreting and

implementing statutes. What began as an unexceptional case focusing on the meaning of the

phrase “stationary source” in the Clean Air Act has developed into one of the most frequently

cited cases ever. Although often relied on as an authority, the case has also engendered significant

confusion. Questions of when, and how, to apply the two-step Chevron analysis laid out by

Justice Stevens, which is simple in theory yet remarkably varied in its application, have

consistently challenged federal judges. Moreover, although Justice Stevens has spent the last

quarter century working to clarify the Chevron doctrine, as he departs the Court he may find

himself outside the majority position on at least one key aspect of the test’s application.

Stevens’s Chevron analysis established what many commentators have considered to be a highly

deferential judicial role when faced with a challenge to an agency’s interpretation of its own

authorizing statute or a statute it administers. At step one of the analysis, a reviewing court must

determine whether Congress has spoken clearly on the issue at hand and give effect to any intent

it finds Congress expressed unambiguously. An agency interpretation that is contrary to the clear

intent of Congress must be rejected. If, however, Congress’s intent is unclear as to the immediate

question, including where Congress is silent, at step two the court’s role is to defer to any

reasonable agency interpretation of the pertinent statutory language. This analysis is commonly

referred to as the Chevron “two-step.”

As much as Justice Stevens’s opinion has been cited, major questions remain about when and

how to properly apply the Chevron test. The threshold question of what types of agency

interpretations qualify for Chevron deference, for example, has narrowed. A second ongoing

dispute, and one in which Justice Stevens has played a leading role, relates to what tools of

statutory construction are properly employed at step one of the test as a court determines

Congress’s “intent.” Specifically, should the court be considering legislative intent and legislative

purpose or restrict itself to the statutory language alone?

Congressional Research Service

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

Contents

Introduction ................................................................................................................................1

The Chevron Decision.................................................................................................................1

The Chevron Legacy ...................................................................................................................3

Authority and Influence ........................................................................................................4

Inconsistent Application and Unresolved Questions...............................................................4

When Does Chevron Apply?: Step Zero ..........................................................................5

Permissible Tools of Statutory Construction For Use at Step One ....................................6

Chevron’s Future.........................................................................................................................8

Contacts

Author Contact Information ........................................................................................................8

Congressional Research Service

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

Introduction

One of Justice Stevens’s most lasting jurisprudential legacies is his opinion in Chevron v. Natural

Resources Defense Council.1 The 1984 case, a landmark decision in both administrative law and

separation of powers, established the legal framework that has largely governed the degree of

deference a court will accord a federal agency in interpreting and implementing statutes. What

began as an unexceptional case focusing on the meaning of the phrase “stationary source” in the

Clean Air Act has developed into one of the most frequently cited cases ever. 2 Although often

relied on as an authority, the case has also engendered significant confusion. Questions of when,

and how, to apply the two-step Chevron analysis laid out by Justice Stevens, which is simple in

theory yet remarkably varied in its application, have consistently challenged federal judges.

Moreover, although Justice Stevens has spent the last quarter century working to clarify the

Chevron doctrine, as he departs the Court he may find himself outside the majority position on at

least one key aspect of the test’s application.

This report will detail the Chevron decision, describe the two-part test laid out by Justice Stevens

for determining whether to accord deference to an agency interpretation, and discuss the

rationales underlying that judicial deference. Finally, the report will consider the significant

influence the opinion has had within administrative law, while highlighting a number of

unresolved questions relating to the proper application of the Chevron test.

The Chevron Decision

The facts of the Chevron case centered on the controversial “bubble concept.”3 The 1977

amendments to the Clean Air Act (CAA) required states that had failed to reach national air

quality standards to institute a permitting program to facilitate a decrease in air pollution

emissions from “any new or modified major stationary sources.”4 The term “stationary sources”

was not defined by the CAA. In 1981, the Environmental Protection Agency (EPA) promulgated

a regulation that allowed states to adopt the “bubble concept” or “plantwide” concept of

“stationary sources” under their permit programs. 5 Such an interpretation calculated plant

emissions as a whole, rather than calculating emission from each individual pollution-emitting

device. Therefore, a plant, which often contained more than one source of air pollution, could

increase emissions from one device as long as there was a corresponding decrease within the

same “industrial grouping” or “bubble.”6 The Natural Resources Defense Council petitioned the

U.S. Court of Appeals for the District of Columbia Circuit to set aside the regulation—arguing

that such an interpretation of “stationary source” was contrary to the statute’s purpose of

Chevron U.S.A Inc. v. NRDC, 467 U.S. 837, 839 (1984).

Chevron is reportedly the most frequently cited case in administrative law and currently the second most frequently

cited case ever behind Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Thomas W. Merrill, The Story of Chevron:

The Making of an Accidental Landmark, Administrative Law Stories 399 (Peter Strauss ed., 2006).

Chevron, 467 U.S. at 839 (1984).

42 U.S.C. § 7502.

40 C.F.R. § 51.18.

Chevron, 467 U.S. at 839.

Congressional Research Service

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

improving air quality. 7 The D.C. Circuit set aside the regulation as contrary to the CAA and the

case was appealed to the U.S. Supreme Court.8

The Supreme Court reversed the D.C. Circuit decision, finding the EPA regulation to be a

permissible exercise of authority under the CAA.9 In doing so, the unanimous10 opinion, authored

by Justice Stevens, laid out a basic two-part test to be applied in reviewing an agency’s

construction of its own statutory authority. In an oft-quoted passage, Justice Stevens summarized

the test, which itself encapsulates the relationship between the courts, the agencies, and Congress

in administering and interpreting statutes:

First, always, is the question whether Congress has directly spoken to the precise question at

issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed intent of Congress. If, however,

the court determines Congress has not directly addressed the precise question at issue, the

court does not simply impose its own construction on the statute, as would be necessary in

the absence of an administrative interpretation. Rather if the statute is silent or ambiguous

with respect to the specific issue, the question for the court is whether the agency’s answer is

based on a permissible construction of the statute.11

Stevens’s Chevron analysis established what many commentators have considered to be a highly

deferential judicial role when faced with a challenge to an agency’s interpretation of its own

authorizing statute or a statute it administers.12 At step one, a reviewing court must determine

whether Congress has spoken clearly on the issue at hand and give effect to any intent it finds

Congress expressed unambiguously.13 An agency interpretation that is contrary to the clear intent

of Congress must be rejected. If, however, Congress’s intent is unclear as to the immediate

question, including where Congress is silent, at step two the court’s role is to defer to any

reasonable agency interpretation of the pertinent statutory language.14 This analysis is commonly

referred to as the Chevron “two-step.”15

In applying the test, at step one Justice Stevens looked at both the statutory text of the CAA and

the statute’s legislative history to determine if Congress had clearly expressed a position on

stationary sources or the bubble concept.16 Finding no evidence that Congress had “directly

spoken to the precise question at issue,” Stevens moved to step two of the Chevron analysis and

concluded that the EPA “plantwide” regulation was indeed a reasonable or “permissible”

construction of the CAA.17

Id. at 841.

NRDC v. Gorsuch, 685 F.2d 718 (D.C. Cir. 1982).

Chevron, 467 U.S. at 845 (“EPA’s use of [the bubble] concept here is a reasonable policy choice for the agency to

make.”).

Only six justices took part in the decision. Justices Marshall, Rehnquist, and O’Connor did not participate.

Chevron, 467 U.S. at 842-43.

See, e.g., Cass Sunstein, Law and Administration after Chevron, 90 Colum. L. Rev. 2071, 2075 (1990) (calling

Chevron a “counter-Marbury”).

Chevron, 467 U.S. at 843 fn.9 (“[T]hat intention is the law and must be given effect.”).

Id. at 843.

Kathryn A. Watts, From Chevron to Massachusetts: Justice Stevens’s Approach to Securing the Public Interest, 43

U.C. Davis L. Rev. 1021 (2010).

Chevron, at 859-65.

Id. at 865 (“In these cases the Administrators interpretation represents a reasonable accommodation of manifestly

(continued...)

Congressional Research Service

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

In support of his analytical framework, Justice Stevens identified three key rationales for

according deference to an agency’s statutory interpretation: congressional delegation, agency

expertise, and political accountability. Under the congressional delegation rationale, once

Congress delegates the authority to administer a program or statutory scheme to an agency, that

delegation “necessarily requires the formulation of policy and the making of rules to fill any gap

left, implicitly or explicitly, by Congress.”18 Thus, an agency’s authority to fill “gaps” in the face

of statutory uncertainty precludes a court from substituting its own judgment “for a reasonable

interpretation made by the administrator of an agency.”19 Under Chevron, resolving statutory

uncertainty by choosing between reasonable interpretations of statutory language represents a

policy decision better answered by the agency that has been delegated policymaking authority by

Congress than answered by a court.

Deference to an agency’s interpretation is also appropriate out of respect for the agency’s

substantive expertise in the area addressed by the statute. As Justice Stevens noted in his opinion,

“judges are not experts in the field” and difficult interpretive decisions often require more than

just “ordinary knowledge respecting the matters subjected to agency regulations.”20

Finally, Justice Stevens alluded to political accountability as a justification for granting deference

to agency interpretations. Stevens noted that judges have no true constituency and are not

accountable to the public for their decisions, and therefore should not substitute their

interpretation of an ambiguous statute for the reasonable interpretation of an agency. 21 “While

agencies are not directly accountable to the people,” wrote Justice Stevens, “the Chief Executive

is, and it is entirely appropriate for this political branch of the government to make such policy

choices—resolving the competing interests which Congress itself either inadvertently did not

resolve, or intentionally left to be resolved by the agency charged with the administration of the

statute in light of everyday realities.”22

The Chevron Legacy

The legal framework laid out in Chevron by Justice Stevens has been cited in over 11,000 judicial

opinions,23 and yet at the time, Stevens felt that his opinion was much closer to a simple

restatement of the law than a groundbreaking precedent.24 As Chevron became regarded as a

fundamental statement in administrative law, however, consistency in its application proved

elusive. Questions about when and how to apply the Chevron analysis remain unsettled.

(...continued)

competing interests and is entitled to deference.”).

Id. at 843-44.

Id. at 844.

Id. at 865.

Id.

According to a LexisNexis search conducted on May, 24, 2010, the Chevron case has been cited in 11,607 federal

and state cases.

Merrill, supra note 2, at 420 (describing Stevens’s comments that the case was “routine” and a restatement of

existing law.) See also Watts, supra note 15, at 9. Consistent with his view, in a 2009 case Stevens asserted that

“[j]udicial deference to agencies’ views on statutes they administer was not born in Chevron.” Negusie v. Holder, 129

S. Ct. 1159, 1170 (2009).

Congressional Research Service

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

Authority and Influence

The Chevron decision has governed the balance of power between agencies and the courts in

interpreting statutes for over 25 years. Although many commentators have argued that the case’s

authority has dwindled in recent years, the opinion continues to be cited with regularity, and

while the Chevron test continues to evolve, the basic Stevens framework continues to be looked

to as an authority in delineating the different interpretive roles of courts and agencies.

Though not always controlling, Justice Stevens’s opinion in Chevron is triggered anytime an

agency formally, or otherwise with the “force of law,” interprets its authorizing statute or a statute

that it administers.25 Therefore, anytime an agency attempts to formally clarify a statutory

ambiguity in the course of implementing a law and that interpretation is subsequently challenged,

a court will most likely consider, if not apply, the Chevron framework. 26 Agencies often use these

statutory clarifications as justifications for significant agency action that some might see as

inappropriately diminishing or expanding a statute’s intended impact. Accordingly, the opinion

has played a large role in a number of landmark cases on alleged agency overreaching in

derogation of the will of Congress. For example, the Court invoked Chevron in striking down the

Food and Drug Administration’s early attempts to exercise regulatory authority over tobacco

products in FDA v. Brown & Williamson Tobacco.27

Still, Chevron’s influence is arguably waning. 28 A number of commentators have suggested that

the Court has less frequently turned to Chevron as its basis for a holding involving agency

statutory interpretation—at times even ignoring the case in situations where it would have

otherwise been applicable.29 Concurrent with this decrease in the case’s use as a controlling

precedent, a series of Court opinions has expressly restricted the circumstances in which Chevron

potentially applies. 30

Inconsistent Application and Unresolved Questions

As much as Justice Stevens’s opinion has been cited, major questions remain about when and

how to properly apply the Chevron test. The threshold question of what agency interpretations

qualify for Chevron deference, for example, remains unclear. A second ongoing dispute, and one

in which Justice Stevens has played a leading role, relates to what tools of statutory construction

are properly employed at step one of the test as a court determines Congress’s “intent.”

Specifically, should the court be considering legislative intent and legislative purpose or restrict

itself to the statutory language alone?

U.S. v. Mead Corp., 533 U.S. 218, 226-227 (2001).

There are also times when the Court has simply ignored Chevron. See, e.g., Brotherhood of Locomotive Engineers v.

Atchison Topeka & Santa Fe Railroad Co., 516 U.S. 152 (ignoring Chevron in a case involving a Federal Railroad

Administration interpretation of the Hours of Service Act).

529 U.S. 120 (2000).

See, Linda Jellum, Chevron’s Demise: A Survey of Chevron from Infancy to Senescence, 59 Admin. L. Rev. 725

(2007) (arguing that Chevron’s influence is narrowing).

Id. at 772-81.

See, e.g., U.S. v. Mead Corp., 533 U.S. 218, 226-227 (2001); Jellum, supra note 28, at 772.

Congressional Research Service

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

A 2009 Supreme Court case entitled Entergy Corp. v. Riverkeeper, Inc. provides a clearly visible

example of the degree of confusion associated with the application of the Chevron test.31 More

than 20 years after the Chevron decision—and after thousands of judicial citations—the Supreme

Court is still arguing over even the most basic aspect of the Chevron test: which step must come

first? In Entergy, the majority upheld an interpretation by EPA of “best technology available” that

included a consideration of the technology’s cost.32 Justice Scalia, writing for the majority, began

his analysis by determining that EPA’s position was a “reasonable interpretation of the statute.”33

In dissent, Justice Stevens criticized the majority for applying the reasonableness test of step two

before considering whether Congress had clearly spoken to the question at issue in step one. 34

Stevens characterized the majority opinion as “puzzling in light of the commonly understood

practice that, as a first step, we ask ‘whether Congress has directly spoken to the precise question

at issue.’”35 Stevens then accused the majority of “assuming ambiguity and moving to the second

step.”36

When Does Chevron Apply?: Step Zero

In 2001, the Supreme Court added a new threshold requirement, or “step zero,” to the Chevron

analysis.37 In U.S. v. Mead Corp., the Court confined Chevron deference to limited types of

agency interpretations.38 Writing for the majority, Justice Souter determined that “administrative

implementation of a particular statutory provision qualifies for Chevron deference when it

appears that Congress delegated authority to the agency generally to make rules carrying the

force of law, and that the agency interpretation claiming deference was promulgated in the

exercise of that authority.”39 Justice Stevens agreed with Justice Souter’s “force of law” threshold

limitation and joined the majority opinion. 40

Mead, along with a case entitled Christensen v. Harris,41 established that the applicability of

Chevron deference would turn largely on the formality of the process through which the agency

adopted its interpretation and the extent to which Congress had delegated authority to the agency.

Policy statements, agency manuals, and interpretive letters, for example, do not warrant Chevronlevel deference. 42 Formal rules and other interpretations holding the “force of law” promulgated

pursuant to delegated authority, however, would qualify for Chevron deference.43 The Court also

129 S. Ct. 1498 (2009).

Id. at 1510.

Id. at 1505.

Id. at 1518 n. 5 (Stevens, J., dissenting).

Id.

Cass Sunstein, Step Zero, 92 Va. L. Rev. 187, 207 (2006).

533 U.S. 218 (2001).

Id. at 226-227 (emphasis added).

Perhaps surprisingly, Justice Stevens has not written a major opinion with respect to the Mead limitation. See, Amy

J. Wildermuth, Solving the Puzzle of Mead and Christensen: What Would Justice Stevens Do? 74 Fordham L. Rev.

1877, 1900 (2006) (“Although Justice Stevens had never shied away from writing separately, he has not authored any

of the majority opinions in this area and thus has never crafted the test.”).

529 U.S. 576 (2000).

Id. at 587.

Id.; Mead, 533 U.S. at 220-28.

Congressional Research Service

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

suggested that those interpretations that failed to qualify for Chevron deference would still

receive so called Skidmore deference. 44 Under Skidmore v. Swift & Co., a court will defer to an

agency interpretation to the extent that the interpretation is persuasive.45

The “force of law” standard from Mead has not been clearly articulated. In Mead itself, the

majority noted the determination was not simply whether the interpretation was made via formal

rulemaking, “for we have sometimes founds reasons for Chevron deference even when no such

administrative formality was required and none was afforded.”46 To further obfuscate the

threshold question, the Court has also added a number of factors to be considered in determining

whether an interpretation qualifies for Chevron deference. In Barnhart v. Walton, the Court, with

Justice Stevens’s support, referenced the importance of “the interstitial nature of the legal

question, the related expertise of the Agency, the importance of the question to administration of

the statute, the complexity of that administration, and the careful consideration the agency has

given the question over a long period of time.”47 Given the confusion associated with the Mead

standard, Justice Scalia, who has opposed the additional threshold layer imposed by Mead and its

progeny, has argued in dissent that the Court will be “sorting out the consequence of the Mead

doctrine … for years to come.”48

Permissible Tools of Statutory Construction For Use at Step One

Justice Stevens has played a prominent role in another ongoing dispute over the application of the

Chevron test. A clear “textualist-intentionalist divide” has emerged on the Court with respect to

the investigation at step one as to whether Congress has spoken to the precise issue in question.49

Justice Stevens has consistently expressed his intentionalist view that legislative history and

legislative purpose play a prominent role in determining Congress’s intent.50 In a footnote in

Chevron, for example, Justice Stevens stated that a reviewing court should employ “traditional

tools of statutory construction.”51 Stevens then went on to consider the text, purpose, and

legislative history of the CAA before concluding that the statute was ambiguous as to the precise

meaning of “stationary source.”52

Justice Scalia, on the other hand, has led the opposition to the use of legislative history and

legislative purpose, pushing strongly for a purely textualist approach to discerning whether a

statute is ambiguous. 53 Under Stevens’s Chevron approach, the first step is to ask whether

Congress’s intent is clear, while under Scalia’s Chevron approach, the first step is simply to ask

whether the enacted text is clear. Although initially following the Stevens approach, the majority

Mead, 533 U.S. 221. The proper application of Skidmore deference, much like Chevron deference, remains up for

debate. Wildermuth, supra note 40, at 1888.

323 U.S. 134 (1944).

Id. at 231.

535 U.S. 212 (2002).

Id. at 239 (Scalia, J., dissenting). Scalia’s dissent also predicted “uncertainty, unpredictability, and endless litigation”

as a result of the increased use of Skidmore deference in the face of the new Mead limitation on Chevron. Id. at 250.

Jellum, supra note 28, at 728.

Id. at 743-748 (discussing Stevens’s intentionalist approach).

Id. at 843 n. 9

Id. at 851-864.

Id. at 748-753 (discussing Scalia’s textualist approach).

Congressional Research Service

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

of the Court now seems to generally support Scalia’s textualist position. 54 At least one

commentator has asserted that “[t]oday, Chevron’s first step is routinely described and applied as

a search for mere textual clarity.”55 Stevens, however, has continued to assert his intentionalist

position in a string of concurrences and dissents.56

What is perhaps the best example of the Stevens-Scalia interpretive divide can be found in a 2007

case entitled Zuni Public School District No. 89 v. Department of Education.57 In Zuni, the

majority, invoking Chevron, upheld an interpretation by the Secretary of Education of the Impact

Aid Act’s “equalization requirement” for aid expenditures to public school districts.58 The case

presented an atypical situation where the legislative history behind the provision seemed to

suggest a congressional understanding contrary to the plain language of the statute. In an opinion

written by Justice Breyer, the majority initially seemed to favor the textualist approach, noting

that “normally neither the legislative history nor the reasonableness of the Secretary’s method

would be determinative if the plain language of the statute unambiguously indicated that

Congress sought to foreclose the Secretary’s interpretation,” but then turned to legislative history

and purpose “because of the technical language of the language in question.”59 Based on an

evaluation of the statute’s history, the majority determined that Congress’s intent was unclear, and

that the agency’s interpretation was reasonable.

Justice Stevens, though joining the court’s ultimate conclusion, wrote a separate concurrence in

which he underscored the importance of legislative history in the Chevron analysis. Relying on

the “clarity” of the provision’s legislative history, Stevens determined that the agency had given

effect to Congress’s clearly expressed intent. 60 Therefore, the inquiry could be resolved at step

one of the Chevron test. In reaching his conclusion, Stevens cited Chevron’s proposition that the

court must employ “traditional tools of statutory construction” in giving effect to Congress’s

intent.61 “Analysis of legislative history,” Stevens continued, “is, of course, a traditional tool of

statutory construction. There is no reason why we must confine ourselves to, or begin analysis

with, the statutory text if other tools of statutory construction provide better evidence of

congressional intent with respect to the precise point at issue.”62 Given the statutory provision’s

legislative history, Stevens was willing to defer to evidence of Congress’s intent over clear

statutory text to the contrary.

Id. at 761.

Jellum, supra note 28, at 761. But see Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81 (2007) (invoking

legislative history). However, the broader investigation into legislative history has been used by some Justices in

coming to a determination of “reasonableness” at step two of the Chevron test. Jellum, supra note 28, at 761-62.

See, e.g., Young v. Community Nutrition Institute, 476 U.S. 974 (1986) (Stevens, J., dissenting); MCI Telecomms.

Corp. v. AT&T Co., 512 U.S. 218 (1994) (Stevens, J., dissenting); Rapanos v. U.S., 547 U.S. 715 (2006) (Stevens, J.,

dissenting); Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81 (2007) (Stevens, J., concurring); Entergy Corp.

v. Riverkeeper, Inc., 128 S. Ct. 1498 (2009) (Stevens, J., dissenting).

550 U.S. 81 (2007)

Id. at 84-6.

Id. at 93, 90.

Id. at 106 (Stevens, J., concurring) (“Given the clarity of the evidence of Congress’ ‘intention on the precise question

at issue,’ I would affirm.”).

Id. at 105.

Id. at 106.

Congressional Research Service

The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

In dissent, Justice Scalia’s analysis, which was joined by Chief Justice Roberts and Justice

Thomas, began and ended with the plain language of the statute. Finding the agency’s

interpretation to be contrary to the “crystal-clear text” of the statute, Justice Scalia did not feel the

Chevron analysis should move beyond step one. 63 His dissent emphasized the importance of the

statutory text, and repeatedly criticized Justice Stevens, as well as the majority opinion, for their

reliance on legislative history. Scalia saw “no reason to resort to legislative history,” noting that

the “only sure indication of what Congress intended is what Congress enacted.”64

Chevron’s Future

As Justice Stevens retires, how the new Court resolves the ambiguities associated with applying

the Chevron test will have a tremendous impact on Chevron’s ultimate legacy. A narrow

construction of the threshold limitation for Chevron deference established in Mead will likely

lead to fewer scenarios in which a court is willing to accord substantial deference to an agency’s

statutory interpretation. Additionally, the more the court limits itself to a pure textual

interpretation at step one of the analysis, the less of a role legislative history and legislative

purpose will play in discerning Congress’s intentions. Specifically, a Court that strongly favors

the Scalia textualist approach will give less credence to congressional reports, hearings, and floor

statements in determining the purpose and limits of congressional delegations to agencies.

Especially with respect to the intentionalist-textualist divide, the impending departure of Justice

Stevens—the leader of the intentionalist camp—could have significant consequences for the

future of the Chevron doctrine.

The legal framework laid out by Justice Stevens in his Chevron opinion is at once ubiquitous and

nebulous. The case is one of the most cited of all time, and yet its proper application remains

unsettled. As the Court prepares for the departure of the Justice who authored the Chevron test,

the test itself will continue to play a role in balancing the interpretive roles of courts and

administrative agencies for the foreseeable future.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Id. at 122 (Scalia, J., dissenting). “The plain language of the federal Impact Aid statute clearly and unambiguously

forecloses [the Secretary’s interpretation]. Her selection of that methodology is therefore entitled to zero deference

under [Chevron].” Id. at 108.

Id. at 122.

Congressional Research Service

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.