Chevron's Interstitial Steps

The Chevron doctrine’s apparent simplicity has long captivated judges, lawyers, and scholars. According to the standard formulation, Chevron involves just two straightforward steps: (1) Is a statute clear? (2) If not, is the agency’s interpretation of the statute reasonable? Despite the influence of this two-step framework, Chevron has come under fire in recent years. Some critics bemoan what they perceive as the Supreme Court’s incoherent application of the Chevron framework over time. Others argue that Chevron’s second step, which calls for courts to defer to reasonable agency interpretations of ambiguous statutory provisions, amounts to an abdication of judicial responsibility. Yet as this Foreword shows, both criticisms draw on a mistaken understanding of Chevron. Despite the conventional view that Chevron analysis has only two steps, the reality is that it has always comprised a series of steps constituting a veritable Chevron staircase. If a statute is unclear at Step 1, a court must confront a number of important legal questions—Chevron’s “Interstitial Steps”—before considering deference at Step 2. After all, the legal justification for Chevron deference—legislative delegation of authority to the * Edward B. Shils Professor of Law and Professor of Political Science, and Director, Penn Program on Regulation, University of Pennsylvania Law School. The author is grateful to the editors at The George Washington Law Review for their invitation to contribute this Foreword, and he is grateful as well for insightful comments from participants in the Law Review’s symposium panel at the American Bar Association Administrative Law and Regulatory Practice’s annual research meeting. He benefited from additional helpful comments from Nicholas Bellos, Ryan Doerfler, Gabriel Scheffler, Daniel Walters, and David Zaring. In addition, Nicholas Bellos, Kelly Funderburk, Chelsey Hanson, and Adeline Rolnick provided research assistance and Mitchell McDonald, Michelle Ramus, Richard Rothman, and Stephen Shapiro of The George Washington Law Review provided much-appreciated editorial assistance. September 2017 Vol. 85 No. 5