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Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779 (2010), available at SSRN.

As one academic, among many, who has made my scholarly reputation based in part on the landmark case of Chevron U.S.A., Inc. v. Nat. Resources Defense Council, 467 U.S. 837 (1984), I noted with some concern Professor Jack Beermann’s latest  work entitled:  End the Failed Chevron Experiment Now:  How Chevron Has Failed and Why it Can and Should be Overruled. Overrule Chevron?  End the experiment? Say it ain’t so! Hadn’t Chevron offered “a wonderful new world … full of promise for administrative-law professors in need of tenure articles….?”  National Cable & Telecommuns. Ass’n v. Brand X Internet Serv., 545 U.S. 967, 1019 (2005) (Scalia, J., dissenting).

I approached his article with some trepidation but also with great interest.  Why would anyone want to overrule Chevron?  Professor Beermann succinctly answers this question in his abstract:  “Chevron has complicated judicial review and, at best, it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled.”  Intrigued, I forged ahead.

His article begins by identifying a number of reasons why the Chevron doctrine has failed.  Specifically, (1) the Chevron doctrine violates 5 U.S.C. § 706, the statute that generally governs judicial review of administrative decisions and requires that courts review questions of law de novo, (2) the Chevron doctrine was based on faulty presumptions regarding congressional intent to delegate by ambiguity and regarding political accountability, (3) the Chevron doctrine is highly unpredictable, (4) the Chevron doctrine has not lead to increased deference to agency interpretations, (5) the Chevron doctrine is often not cited by the Supreme Court in cases in which it should apply, (6) the Chevron doctrine has increased litigation costs, and (7) the Chevron doctrine encourages agencies and judges to act irresponsibly.  Perhaps most importantly, however, Professor Beermann notes that the Chevron doctrine is simply unclear in application.  First, it is unclear whether Chevron applies:  Professor Cass Sunstein famously labeled the question of whether Chevron applies as Chevron step zero.  Second, it is unclear how Chevron applies; in other words, is step one just a textual analysis or is it a full statutory interpretation analysis and does step two apply differently depending on whether Congress was explicit or implicit when it delegated?  Third, it is unclear why Chevron applies given that the doctrine was contrary to the established distribution of interpretive power among the three branches.  Finally, it is unclear when Chevron applies; in other words, does the doctrine apply to agency policy decisions or just to agency statutory interpretations?

While Chevron initially promised simplicity, it has delivered only chaos.  Indeed, the Justices have developed four variants of Chevron:  (1) the “original directly spoken” variant, (2) the “traditional tools” variant, (3) the “plain meaning” variant, and (4) the “extraordinary cases” variant.  The number and diversity of the variants epitomizes all that is wrong with Chevron; hence, Professor Beermann concludes that the case should be overruled and the doctrine replaced with a more consistent and simple one.

After describing Chevron’s failings, Professor Beermann very briefly explains why overruling Chevron would not violate the Supreme Court’s stare decisis principles.  In short, overruling Chevron would be permissible under Pearson v. Callahan, 129 S. Ct. 808, 811 (2009), in which the Supreme Court explained when overruling a case would be consistent with stare decisis principles.  At bottom, overruling Chevron would not affect settle expectations because the doctrine’s application has been so unsettled.  Additionally, it is a judge-made doctrine that time and experience have proved unworkable.

In the final section of his article, Professor Beermann offers two alternatives: reforming or replacing Chevron.  Both alternatives would be more consistent with the APA’s assignment to the courts to review questions of law de novo and questions of policy under arbitrary review.

Alternative one:  if Chevron were not jettisoned, Professor Beermann begs that it at least be reformed.  Specifically, he argues that the narrow, step one variants be rejected.  Courts should be free to interpret statutory language using all the traditional tools of interpretation.  Such a change would return interpretive power to the judiciary.  Second, he recommends that step two be limited to occasions when Congress explicitly delegated a range of choices to the agency and be expanded to include arbitrary and capricious review.  Supporting this additional step, he says that it is possible for an interpretation to be a reasonable interpretation of the statute, but still be arbitrary and capricious choice.  Third, he suggests that Chevron step zero die a quick and painless (painful?) death.  This step simply complicates the analysis unnecessarily; rather, Chevron should apply universally, whenever Congress specifically delegated interpretive authority to the agency.

Alternative two:  Instead, if Chevron were jettisoned, Professor Beermann recommends returning to pre-Chevron practice.  Under this practice, assuming an agency had the power to make legislative rules, the reviewing court would determine whether the agency had interpreted the statute reasonably by paying close attention to the language of the statute, its purpose, and its history.  In addition, the court would consider the wisdom of the agency’s policy choice under the arbitrary, capricious standard.  Pre-Chevron, judges were the final arbitrators of statutory meaning, while agencies played an advisory role.

Regardless of whether you agree with Professor Beermann’s provocative demand to “End the Failed Chevron Experiment Now,” he has written a persuasive article that identifies and explains the problems with continuing with Chevron in its current form, whatever variant that might be.  He has identified two alternatives, either of which would vastly simplify judicial review of agency interpretations of statutes.  In short, while I expect many law professors might decry the loss of Chevron, this article suggests we would be crying alone.

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Cite as: Linda Jellum, Jettisoning Chevron, JOTWELL (November 19, 2010) (reviewing Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779 (2010), available at SSRN),