# The Jurisprudence of Justice John Paul Stevens: The Chevron Doctrine

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/crs%3AR41260

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 26, 2010
- **Citation:** R41260

## 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

1

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

2

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).
3
Chevron, 467 U.S. at 839 (1984).
4
42 U.S.C. § 7502.
5
40 C.F.R. § 51.18.
6
Chevron, 467 U.S. at 839.

Congressional Research Service

1

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
7

Id. at 841.
NRDC v. Gorsuch, 685 F.2d 718 (D.C. Cir. 1982).
9
Chevron, 467 U.S. at 845 (“EPA’s use of [the bubble] concept here is a reasonable policy choice for the agency to
make.”).
10
Only six justices took part in the decision. Justices Marshall, Rehnquist, and O’Connor did not participate.
11
Chevron, 467 U.S. at 842-43.
12
See, e.g., Cass Sunstein, Law and Administration after Chevron, 90 Colum. L. Rev. 2071, 2075 (1990) (calling
Chevron a “counter-Marbury”).
13
Chevron, 467 U.S. at 843 fn.9 (“[T]hat intention is the law and must be given effect.”).
14
Id. at 843.
8

15

Kathryn A. Watts, From Chevron to Massachusetts: Justice Stevens’s Approach to Securing the Public Interest, 43
U.C. Davis L. Rev. 1021 (2010).
16
Chevron, at 859-65.
17
Id. at 865 (“In these cases the Administrators interpretation represents a reasonable accommodation of manifestly
(continued...)

Congressional Research Service

2

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.”).
18
Id. at 843-44.
19
Id. at 844.
20
Id. at 865.
21
Id.
22
Id.
23
According to a LexisNexis search conducted on May, 24, 2010, the Chevron case has been cited in 11,607 federal
and state cases.
24
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

3

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?

25

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).
27
529 U.S. 120 (2000).
28
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).
29
Id. at 772-81.
30
See, e.g., U.S. v. Mead Corp., 533 U.S. 218, 226-227 (2001); Jellum, supra note 28, at 772.
26

Congressional Research Service

4

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
31

129 S. Ct. 1498 (2009).
Id. at 1510.
33
Id. at 1505.
34
Id. at 1518 n. 5 (Stevens, J., dissenting).
35
Id.
36
Id.
37
Cass Sunstein, Step Zero, 92 Va. L. Rev. 187, 207 (2006).
38
533 U.S. 218 (2001).
39
Id. at 226-227 (emphasis added).
32

40

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.”).
41
529 U.S. 576 (2000).
42
Id. at 587.
43
Id.; Mead, 533 U.S. at 220-28.

Congressional Research Service

5

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
44
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.
45
323 U.S. 134 (1944).
46
Id. at 231.
47
535 U.S. 212 (2002).
48

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.
49
Jellum, supra note 28, at 728.
50
Id. at 743-748 (discussing Stevens’s intentionalist approach).
51
Id. at 843 n. 9
52
Id. at 851-864.
53
Id. at 748-753 (discussing Scalia’s textualist approach).

Congressional Research Service

6

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.

54

Id. at 761.

55

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.
56
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).
57
550 U.S. 81 (2007)
58
Id. at 84-6.
59
Id. at 93, 90.
60
Id. at 106 (Stevens, J., concurring) (“Given the clarity of the evidence of Congress’ ‘intention on the precise question
at issue,’ I would affirm.”).
61
Id. at 105.
62
Id. at 106.

Congressional Research Service

7

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-....

63

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.
64
Id. at 122.

Congressional Research Service

8

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
copyright on any CRS report we have republished.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR41260. Public record. Not legal advice.