Chevron, Take Two: Deference to Revised Agency Interpretations of Statutes

Abstract

Id. 10 480 US 421, 446 (1987). Justice Scalia, concurring in the judgment, agreed that the statute was unambiguous, but disputed the use of such "tools" as a means of interpreting statutes, claiming that such use "would make deference a doctrine of desperation, authorizing courts to defer only if they would otherwise be unable to construe the enactment at issue. This is not an interpretation but an evisceration of Chevron." Id at 454 (Scalia concurring). "Id at 446 n 30 (majority opinion), quoting Watt v Alaska, 451 US 259, 273 (1981). "[N]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." Rust v Sullivan, 500 US 173, 184 (1991) (citation omitted).

Judicial Deference to Inconsistent Agency Statutory Interpretations

“…Many of these scholars conclude that the need for agencies to respond flexibly to changing circumstances militates in favor of deferring just as much to revised agency interpretations as to initial agency interpretations (Diver 1985;Sunstein 1990;Weaver 1992;Gossett 1997;Shuren 2001;Dotan 2005). A powerful additional argument for this position invokes the importance of political accountability: changes in an agency's interpretive position may reflect changes in the agency's political priorities-often triggered by a change in the presidential administration-and courts should respect this legitimate rationale for policy change (Pierce 1988;Scalia 1989;Sunstein 1990;Gossett 1997). The principal countervailing consideration noted in the literature is the rule-of-law interest in predictability and consistency in the meaning of statutes (Sunstein 1990;Merrill 1992;Murphy 2005).…”

Judicial Deference to Inconsistent Agency Statutory Interpretations

“…Gossett (1997) reports that, notwithstanding the inconsistent rhetoric about whether inconsistent agency interpretations are entitled to less deference, in practice federal appeals courts do not seem to defer substantially less often to changed agency interpretations. If accurate, this evidence suggests that the position advanced in cases like Chevron, Rust, and Brand X better captures the approach taken by most courts than does the contrary language in cases like Cardoza-Fonseca, Pauley, and Good Samaritan Hospital.…”