Categorizing Chevron

61 Pages Posted: 28 Oct 2020 Last revised: 13 Jan 2021

See all articles by Kristin E. Hickman

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

David Hahn

Independent

Date Written: September 15, 2020

Abstract

What is the Chevron doctrine? Everyone knows Chevron as a doctrine that has governed judicial review of agency interpretations of ambiguous statutes for more than thirty years. Yet courts and commentators continue to disagree over how the doctrine works and what it requires courts to do. Contributing to the disagreement is a categorization problem: Is Chevron a standard of review, a rule of decision, or a canon of construction? Most cases in which courts might apply Chevron can be resolved without answering that question, but some cannot. Two recent debates about Chevron particularly raise the categorization issue: whether the government can waive or forfeit Chevron deference, and also whether or under what circumstances the Supreme Court might overturn Chevron notwithstanding stare decisis. This Article contemplates Chevron’s categorization and the implications of each alternative before concluding that Chevron is best considered a standard of review as a construction of Administrative Procedure Act § 706.

Keywords: Chevron, judicial review, Administrative Procedure Act, standards of review

JEL Classification: K10, K19, K23, K30, K39, K40, K41

Suggested Citation

Hickman, Kristin E. and Hahn, David, Categorizing Chevron (September 15, 2020). 81 Ohio St. L.J. 611 (2020), Available at SSRN: https://ssrn.com/abstract=3693132

Kristin E. Hickman (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2915 (Phone)

David Hahn

Independent ( email )

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