Step One of Chevron v. Natural Resources Defense Council
Second Revised Draft
Prepared for the Scope of Judicial Review portion of the Project on the Administrative
Procedure Act
April 2001
Elizabeth Garrett*
I.
To interpret a regulatory statute, a court first determines whether the statutory
meaning with respect to the precise issue before the court is clear. If the statutory
meaning is ambiguous or if the statute is silent, the court does not impose its own
construction on the text. Instead, the court decides whether the agency’s
interpretation of the statute is permissible.
In Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Court set
out a two-step process for the interpretation of regulatory 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.” Id. at 842-43 (footnotes omitted).
Step One of Chevron, therefore, determines the role of the judiciary in interpreting
regulatory statutes. The Court defined the judicial role to be less extensive than its traditional
one in interpreting other kinds of statutes, where judges continue to interpret and clarify
statutory language after finding the text ambiguous or discovering a gap in the statute. In the
context of regulatory statutes, however, silence or ambiguity triggers judicial deference to
reasonable agency interpretations of the statute. Thus, Chevron has profound institutional
implications, shaping the relationship among the branches of government and serving as a kind
of “counter-Marbury” for the regulatory state. See Cass Sunstein, Law and Administration
After Chevron, 90 Colum. L. Rev. 2071, 2075 (1990); see also Cynthia Farina, Statutory
Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452
(1989) (discussing separation of powers implications of Chevron); Jonathan Molot, The Judicial
Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the
Judiciary’s Structural Role, 53 Stan. L. Rev. 1 (2000) (arguing that Chevron is inconsistent with
the Founders’ view of the appropriate judicial role in statutory interpretation).
*
Professor, University of Chicago Law School. I appreciate comments on an earlier draft by Ron Levin, Charles
Koch, Andrei Marmor, Ricky Revesz, Adrian Vermeule, and members of the ABA Section on Administrative Law
and the Regulatory Process, as well as the research assistance of Leslie Danks and Crista Leahy. I also appreciate
the generous support of the James H. Douglas Fund for the Study of Law and Government and the Law and
Government Program Endowment, both at the University of Chicago Law School.
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Chevron’s framework seems to be in tension not only with the traditional role of the
judiciary, the institution primarily charged with determining what the laws mean, but also with
the Administrative Procedure Act (“APA”) itself. The APA requires courts to “decide all
relevant questions of law, interpret constitutional and statutory provisions,” and to set aside
agency action “in excess of statutory jurisdiction, authority, or limitation, or short of statutory
right.” 5 U.S.C. § 706. During deliberations on the APA, the Chairman of the House
Subcommittee on Administrative Law, Representative Francis Walter, explained that section
706 “requires courts to determine independently all relevant questions of law, including the
interpretation of constitutional or statutory provisions.” 92 Cong. Rec. 5654 (1946).
Some scholars have attempted to reconcile Chevron with the traditional role of the
courts in statutory interpretation. John Duffy argues that Chevron’s test and the APA’s text can
be reconciled by understanding that regulatory statutes delegate to an agency the power to
interpret ambiguous statutory commands, so long as the agency’s decision does not conflict
with any other provision of the law. John Duffy, Administrative Common Law in Judicial
Review, 77 Tex. L. Rev. 113, 199-203 (1998). He concludes: “The illusion of deference [in
applying the Chevron test] is created by the agency’s delegated authority to fill in the details of
the statute, which will affect a court’s interpretation of the more general language in the statute.
Thus, Chevron is primarily a case about delegation, not deference.” Id. at 202. Charles Koch
presents a different reconciliation, arguing that academics have mischaracterized Chevron. He
contends that Justice Stevens’ opinion is not a sweeping departure from precedent. See Charles
Koch, Jr., Administrative Law and Practice § 12.32[2] (2d ed. 1997) (“The ‘Chevron doctrine’
is largely the creation of legal scholars. It is doubtful that the opinion was intended to or has in
fact changed the law.”). He understands Chevron Step One to instruct courts to perform their
ordinary task of statutory interpretation and to do so without special deference to the
administrative agency. The Step Two analysis is not really a determination of a question of law,
Koch continues, but a judicial assessment of the reasonableness of the agency’s policy choice
when Congress has not dictated a particular policy in the statute. In the realm of policy, courts
have long deferred to agencies. See SEC v. Chenery Corp. [Chenery I], 318 U.S. 80, 94 (1943).
Koch points to another Stevens’ opinion to buttress his interpretation of Chevron: “Fashioning
appropriate standards under [the Endangered Species Act] necessarily requires the exercise of
broad discretion. The proper interpretation of a term such as ‘harm’ involves a complex policy
choice. When Congress has entrusted the Secretary with broad discretion, we are especially
reluctant to substitute our views of wise policy for his.” Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 515 U.S. 687, 708 (1995).
Soon after the Court decided Chevron, it appeared to cut back on the scope of its new
doctrine. In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the Immigration and Nationality
Service had interpreted the term “well-founded fear” used in a provision of the Immigration and
Nationality Act to mean the same thing as a standard in a different section of the Act that
required proof of a “clear probability of persecution.” Justice Stevens declined to defer to the
agency’s interpretation of the term, primarily because the Court found that the interpretation
was inconsistent with clear congressional intent. Not only did it appear that Congress intended
the different phrasing to mean different things, but the term “well-founded fear” turned to some
extent on the subjective mental state of the alien, unlike the other provision’s more objective
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test. Id. at 430-431. Stevens also suggested in dicta that Chevron’s two-step test should apply
only when a question of statutory interpretation could be characterized as a mixed question of
law and fact, rather than a pure question of law. Stevens stated that Chevron deference was
inappropriate in Cardoza-Fonseca because the “narrow legal question whether the two
standards are the same is, of course, quite different from the question of interpretation that
arises in each case in which the agency is required to apply either or both standards to a
particular set of facts.” Id. at 448.
In his concurrence, Justice Scalia feared that the Court’s language would be understood
to empower judges to resume their traditional nondeferential role in statutory interpretation
when a challenge to an ambiguous provision in a regulatory statute could be characterized as
raising “a pure question of statutory construction.” Id. at 454 (Scalia, concurring in the
judgment). The dicta might encourage courts to apply the Chevron framework only when the
agency was applying the law to facts. Scalia contended that the question before the Court in
Chevron, “the Environmental Protection Agency’s abstract interpretation of the phrase
‘stationary source,’” was not a different sort of interpretative problem than the one posed in
Cardoza-Fonseca. Id. at 455. Neither was more or less a pure question of statutory
interpretation, and he argued that courts would find it very difficult to distinguish between
purely legal questions and mixed questions of law and fact.
Cardoza-Fonseca’s dicta proved to have very little lasting effect. In NLRB v. United
Food and Commercial Workers Union, 484 U.S. 112 (1987), the Court stated that it was faced
with a pure question of statutory construction in the sense meant by Cardoza-Fonseca. Yet, it
also held that it would defer to a reasonable interpretation by the agency if the statutory
language was silent or ambiguous with respect to the precise issue before the Court. Id. at 123.
It read Cardoza-Fonseca and Chevron as cases using the same method to interpret regulatory
statutes. Justice Scalia emphasized the relevance of United Food Workers for the proper
understanding of the dicta in Cardoza-Fonseca: “[O]ur decision demonstrates the continuing
and unchanged vitality of the test for judicial review of agency determinations of law set forth
in Chevron …. Some courts have mistakenly concluded otherwise, on the basis of dicta in INS
v. Cardoza-Fonseca.” Id. at 133 (Scalia, concurring). The best way to understand the dicta in
Cardoza-Fonseca, then, is to understand the Court’s reference to pure questions of statutory
construction as those that courts can resolve using clear congressional intent and the plain
meaning of the statute. See Michael Herz, Deference Running Riot: Separating Interpretation
and Lawmaking Under Chevron, 6 Admin. L.J. 187, 224 (1992). Although the “well-founded
fear” language in Cardoza-Fonseca was ambiguous and thus the INS had some discretion to
give it meaning, the Court held that the particular interpretation selected by the agency was
inconsistent with the plain statutory language and framework. See 480 U.S. at 432-33, 449. See
also Whitman v. American Trucking Associations, Inc., 121 S.Ct. 903 (2001) (applying Chevron
to case involving the Clean Air Act; finding ambiguity that would require deference to a
reasonable agency interpretation; but finding agency’s interpretation inconsistent with the
statutory language).
II.
Step One of Chevron does not dictate that courts use any particular method of
statutory interpretation. Most courts, including the Chevron Court, view their
interpretive role as requiring them to discern legislative intent. Other judges
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follow a method of interpretation known as textualism, which focuses on the plain
meaning of the statutory text.
Given the date of the decision (the early 1980s) and its author (Justice Stevens), it is not
surprising that Chevron conceived of the judiciary’s job as determining the intent of Congress.
Intentionalism has long been the dominant interpretive approach of the courts, even though the
notion that a multi-member body can have a unitary, comprehensible intent has been criticized
as problematic. Since Chevron, a different method of interpretation has become prominent, in
large part through the advocacy of Justice Scalia. Scalia, along with Justice Thomas, interprets
statutes using a method called textualism. See Antonin Scalia, A Matter of Interpretation:
Federal Courts and the Law 23-47 (1997). Textualists are not particularly concerned with
discovering congressional intent, at least inasmuch as it differs from the directives found in the
statutory language itself. Accordingly, textualists do not rely on legislative history materials
except in rare cases, as the discussion in Part III.D., infra, will describe more fully. Although
textualism is influential in the courts and the academy, largely because of Justice Scalia’s
aggressive advocacy campaign, the majority of judges, including a majority of the Supreme
Court, remain intentionalists. However, the debate about interpretive methodology has led to a
renewed emphasis on the primacy of the text and its plain meaning in all statutory
interpretation.
The decision whether to use intentionalism or textualism as the mode of interpretation is
not affected by the relevance of Chevron to the case. Textualists will use their method of
interpretation at Step One, and intentionalists will use theirs. The selection of interpretive
method has important implications, however, for the vitality of the Chevron framework. It is
possible that a particular method of interpretation will systematically allow courts to decide
cases at Step One, eliminating the need to defer to agency interpretations and reducing the
difference between traditional statutory interpretation by courts and that done pursuant to
Chevron. Justice Scalia has argued that textualism allows judges to decide more cases at Step
One than do intentionalist techniques. He explains: “One who finds more often (as I do) that
the meaning of a statute is apparent from its text and from its relationship with other laws,
thereby finds less often that the triggering requirement for Chevron deference exists. It is thus
relatively rare that Chevron will require me to accept an interpretation which, though
reasonable, I would not personally adopt.” Antonin Scalia, Judicial Deference to
Administrative Interpretations of Law, 1989 Duke L.J. 511, 521. Whether Justice Scalia’s
method of interpretation leads more often to finding clear statutory mandates than do other
methods is a controversial contention. Its validity depends on further empirical study. See
Thomas Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash. U. L.Q. 351,
367 and Fig. 1 (1994) (discussing the question whether legislative history, which textualists do
not use, tends to narrow the possible range of meanings that the text can support, or whether it
expands that range and introduces ambiguity in circumstances where a textual approach would
find relatively clear meaning).
Because of the influence of textualists on the Court and the importance of their votes in
close cases, in a few recent opinions the Justices have restated Step One of Chevron to eliminate
references to legislative intent as the lodestar of interpretation. For example, in National
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Railroad Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407 (1992), the Court described
its role as follows:
“If the agency interpretation is not in conflict with the plain language of the statute,
deference is due. In ascertaining whether the agency’s interpretation is a permissible
construction of the language, a court must look to the structure and language of the
statute as a whole. If the text is ambiguous and so open to interpretation in some
respects, a degree of deference is granted to the agency, though a reviewing court need
not accept an interpretation which is unreasonable.” Id. at 417-18 (citations omitted).
See also Thomas Merrill, supra (discussing changes in Chevron as a result of the rise of
textualism).
Two opinions in another case also reflect this subtle change in the formulation of
Chevron. In K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988), both Justice Kennedy (writing
for the Court) and Justice Brennan (concurring in relevant part) applied the Chevron test, but the
majority articulated the test in a way much more compatible with a textualist approach and with
few references to legislative intent or legislative history. Although he mentioned “the clearly
expressed intent of Congress” in a direct quotation from Chevron, Justice Kennedy conceived of
the Step One process as “ascertaining the plain meaning of the statute.” Id. at 291. Deference is
due if the agency interpretation of ambiguous language is “not in conflict with the plain
language of the statute.” Id. at 292. In contrast, Justice Brennan’s concurrence is replete with
references to the intent of Congress, and unlike the majority, he does not limit his search for
intent to the language and structure of the statute but also relies on extensive discussion of the
legislative materials and drafting history. As we will discuss below, textualists reject such use
of legislative history in statutory interpretation.
The shift in the formulation of Chevron’s two-step analysis should not be overstated; in
most cases, the Supreme Court and lower courts use the intentionalist language of Chevron even
when their method of interpretation more closely resembles textualism in its emphasis on
statutory language, dictionary definitions and statutory structure. If more judges adopt
textualism as their interpretive method, however, the Boston & Maine Corp. rephrasing may
occur more frequently. Even now, some lower court panels have used this language as a cue to
the appropriate interpretive methodology at Step One. See, e.g., Strickland v. Commissioner of
the Maine Department of Human Services, 48 F.3d 12, 16 (1st Cir. 1995) (quoting K Mart
Corp. formulation and discussing what the rephrasing means for the use of legislative history by
a court); Bankers Life and Casualty Co. v. U.S., 142 F.3d 973, 982-83 (7th Cir. 1998)
(characterizing Boston & Maine Corp. as a stage in the Supreme Court’s “ongoing
development” of Chevron “especially regarding the scope of the initial inquiry into statutory
meaning”).
III.
At Step One, a court should use the “traditional tools of statutory construction” to
determine whether the meaning of the statute is clear with respect to the precise
issue before it. These tools include the text of the statute, dictionary definitions, the
statutory structure, legislative purpose, and legislative history.
In its formulation of Step One of the Chevron test, the Court included a crucial footnote:
“The judiciary is the final authority on issues of statutory construction and must reject
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administrative constructions which are contrary to clear congressional intent. If a court,
employing traditional tools of statutory construction, ascertains that Congress had an intention
on the precise question at issue, that intention is law and must be given effect.” Chevron, 467
U.S. at 843 n.9 (emphasis added) (citations omitted). All judicial interpreters consider statutory
text, the statutory structure, purpose and framework, and dictionary definitions as traditional
tools of statutory construction. Intentionalists also rely on legislative materials, such as
committee reports, floor statements, and drafting history, to ascertain whether congressional
intent is clear; textualists prefer to exclude legislative history from their interpretive toolbox.
A. Statutory Text and Dictionary Definitions
Statutory language is the primary source of meaning for courts. Frequently, statutes will
provide definitions of key words, particularly when such words are used in a way that differs
from their ordinary meaning. In Gustafson v. Alloyd Co., Inc., 513 U.S. 561 (1995), the Court
consulted the statutory definition of “prospectus” as part of its inquiry into the meaning of that
term in a provision allowing a right of rescission against sellers who make material
misrepresentations “by means of a prospectus.” Id. at 573-576. Dictionary definitions are used
as evidence of ordinary usage of words found in regulatory statutes, the usage which should
prevail absent a finding that words should be understood in some specialized sense. With the
rise of textualism, dictionaries are increasingly popular tools of statutory construction, and
many judicial arguments revolve around which dictionary or which definition in one dictionary
is appropriate in a particular case. See Ellen Aprill, The Law of the Word: Dictionary Shopping
in the Supreme Court, 30 Ariz. St. L.J. 275 (1998); Note, Looking It Up: Dictionaries and
Statutory Interpretation, 107 Harv. L. Rev. 1437 (1994). For example, the opinions in MCI
Telecommunications Corp. v. AT&T, 512 U.S. 218 (1994), include arguments about the relative
merits of Webster’s Third New International Dictionary (a descriptive dictionary that Scalia
argues promotes colloquial and erroneous usage as correct usage) with those of Webster’s
Second (a prescriptive dictionary).
Often a court discovers that there are alternative dictionary definitions for crucial words.
In some cases, the existence of alternative dictionary definitions, “each making some sense
under the statute,” leads the court to conclude that the statute is ambiguous or incomplete and
thus to defer to the agency’s reasonable choice. See Boston & Maine Corp., 503 U.S. at 418. In
other cases, the court will conclude that only one definition is sensible and thus resolve the
interpretive question at Step One. In MCI Telecommunications Corp. v. AT&T, the Court was
faced with the question of the meaning of the word “modify.” With one exception, the
definitions in several dictionaries included a “connotation of increment or limitation”; only one
definition among many contained in Webster’s Third defined “modify” to also mean “to make a
basic or important change in.” Id. at 225-226. Justice Scalia concluded that this outlier
definition was based either on intentional distortions of the word (perhaps for sarcastic effect) or
on careless or ignorant misuse (which he claimed occurs frequently in Webster’s Third). Id. at
228. He refused to find an ambiguity requiring deference because of “a meaning set forth in a
single dictionary (and, as we say, its progeny) which not only supplements the meaning
contained in all other dictionaries, but contradicts one of the meanings in virtually all other
dictionaries. Indeed, contradicts one of the alternative meanings contained in the out-of-step
dictionary itself.” Id. at 227. Thus, the case was decided at Step One.
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B. Statutory Structure and Framework
Both intentionalists and textualists also consider aspects of the larger statutory
framework to provide meaning to particular statutory provisions. First, judges will consult the
entire statute in which the provision appears, including sections of the statute passed at different
times. They will try to adopt a meaning that makes the most sense of the statute as a whole and
promotes coherence. See, e.g., Gustafson, 513 U.S. at 568-573 (interpreting the Securities Act
of 1933, 15 U.S.C. § 77a-aa); Visiting Nurses Ass’n of Southwestern Indiana v. Shalala, 213
F.3d 352 (7th Cir. 2000) (interpreting section 1359gg of the Social Security Act).
Second, judges consider related statutes in order to adopt a meaning of the relevant
terms “with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson
Tobacco Corp., 120 S.Ct. 1291, 1301 (2000) (quoting Davis v. Michigan Department of
Treasury, 489 U.S. 803, 809 (1989)). In Brown & Williamson, the Court (in an opinion written
by Justice O’Connor and joined by the textualist justices) discussed the effect on the regulatory
scheme of considering nicotine as a “drug” and cigarettes as “drug delivery devices” given the
other provisions of the Food, Drug, and Cosmetic Act (the “FDCA”). But the Court did not
stop with a consideration of the FDCA; instead, it also observed that “the meaning of one
statute may be affected by other Acts, particularly where Congress has spoken subsequently and
more specifically to the topic at hand.” Id.
The Brown & Williamson case also reflects a third kind of context available at Step One:
subsequent legislative activity that reaffirms congressional understanding of the text at issue.
See also Independent Insurance Agents of America, Inc. v. Hawke, 211 F.3d 638, 643 (D.C. Cir.
2000) (considering subsequent statutes in interpreting the term “incidental powers” in the
National Bank Act). In Brown & Williamson, the Court analyzed various tobacco-related laws
passed after the FDCA over the last 35 years, as well as legislative proposals that would have
granted the FDA clear authority to regulate tobacco products and that had been rejected by
Congress. 120 S.Ct. at 1306-1313. But see Solid Waste Agency of Northern Cook County v.
Army Corps of Engineers, 121 S.Ct. 675, 681-682 (2001) (refusing to allow evidence of failed
legislative proposals to inform interpretation of plain text of statute because proposals fail for
many reasons and the connection between the subsequent history and the original congressional
intent is “considerably attenuated”). The Brown & Williamson Court concluded on the basis of
its analysis of subsequent history that the FDCA clearly excluded the regulation of tobacco
products from the jurisdiction of the FDA. Notably, the Brown & Williamson dissent did not
contest the holistic interpretive method of the Court. Rather, Justice Breyer disagreed with the
interpretation of the FDCA and the conclusions drawn from subsequent legislative action,
finding that they left ambiguous the agency’s authority to regulate cigarettes.
Brown & Williamson is noteworthy for two other reasons pertinent to the Step One
discussion. First, the majority appeared to find relevant the FDA’s longstanding position that it
lacked the power to regulate cigarettes under the FDCA. Justice Breyer attacked this position as
inconsistent with clear precedent, including Chevron itself, that allows agencies to change their
understanding of ambiguous terms in regulatory statutes and to alter their policies as
administrations change and as scientific and other information develops. 120 S.Ct. at 1329-
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1331. The majority claimed not to be relying on past agency interpretations as an independent
source of meaning, but rather as a way to discover the context in which Congress legislated over
the course of three decades and to suggest the likely congressional understanding of the
regulatory framework. See, e.g., id. at 1308. See also Solid Waste Agency, 121 S.Ct. at 680
(noting that the original interpretation by the Army Corps was inconsistent with the
interpretation at issue in the case and giving priority to the original position which was closer to
the time of enactment and thus apt to better reflect congressional intent).
Second, as part of the Step One inquiry, the Court was guided “to a degree by common
sense as to the manner in which Congress is likely to delegate a policy decision of such
economic and political magnitude to an administrative agency.” Id. at 1301. This language
could presage a shift in the Chevron doctrine so that it operates not as a general presumption
applicable to all regulatory statutes, but as a judicial strategy used only where it appears that
Congress actually intended courts to defer to agency interpretations of ambiguous statutory text.
In other words, under the latter approach, courts would not automatically apply Chevron, but
they would determine in a case-by-case fashion whether deference accorded with congressional
intent with respect to a particular statute. This weaker version of Chevron is an approach that
Justice Breyer has urged in scholarly articles attacking the stronger version of Chevron
deference as contrary both to the judicial role articulated by Marbury v. Madison and to the
APA’s provisions governing judicial review. See Stephen Breyer, Judicial Review of Questions
of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986). The Brown & Williamson majority
cited Breyer’s article, 120 S.Ct. at 1314, lending support to the notion that the opinion can at
least be read to signal interest in weakening Chevron.
The long-term effect of this passage remains to be seen. Other than citing to Justice
Breyer’s article, the Court did not suggest that it is considering altering the general presumption
of Chevron to one that applies only when there is evidence of an explicit congressional
delegation. The majority reiterated that Chevron deference is still the predominant interpretive
approach, and it labeled the case before it as “hardly an ordinary case,” because of the economic
impact of the regulation and the unique political history of tobacco legislation and regulation.
Id. at 1315. In addition, it relied on past precedent for the more limited proposition that
“Congress could not have intended to delegate a decision of such economic and political
significance to an agency in so cryptic a fashion.” Id. Arguably, the majority in Brown &
Williamson merely concluded at Chevron Step One that Congress could not have intended
through its use of broad and general language to delegate to the FDA the power to regulate
tobacco, a significant political issue. Thus, the FDCA was not ambiguous on the precise issue
before the court, and Chevron deference was not triggered. Justice Scalia is an enthusiastic
advocate of the stronger version of Chevron as a background presumption applying to all
regulatory statutes and joined the Brown & Williamson majority, no doubt because he
understood this passage in the more limited way. In another case decided in the same term as
Brown & Williamson, Scalia wrote: “Chevron establishes a presumption that ambiguities are to
be resolved (within the bounds of reasonable interpretation) by the administering agency. The
implausibility of Congress’s leaving a highly significant issue unaddressed (and thus
“delegating” its resolution to the administering agency) is assuredly one of the factors to be
considered in determining whether there is ambiguity, but once ambiguity is established the
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consequences of Chevron attach.” Christensen v. Harris County, 120 S.Ct. 1655, 1664 n.*
(2000) (Scalia, concurring in part and concurring in the judgment) (citation omitted).
C. Legislative Purpose
Textualists and intentionalists will consider statutory purposes in their search for
unambiguous statutory meaning. Although policy arguments relevant in choosing among
competing meanings for ambiguous statutory language are more properly within the province of
the agency in its Step Two role, see, e.g., Chevron, 467 U.S. at 864-66, the general purpose of
Congress in enacting a certain regulatory framework may provide compelling evidence of
legislative intent with respect to particular provisions. For example, in interpreting provisions
of the Telecommunications Act of 1996, Justice Breyer considered both the legislative history
and the statutory purpose to “illuminate [the Act’s] language.” AT&T Corp. v. Iowa Utilities
Board, 525 U.S. 366, 412 (1999) (Breyer, concurring in part and dissenting in part). See also
Presley v. Etowah County Comm’n, 502 U.S. 491, 508-509 (1992) (rejecting agency’s
interpretation on the basis of structure and purpose arguments); CSX Transportation v. U.S., 867
F.2d 1439, 1443 (D.C. Cir. 1989) (considering structure and purpose of the Staggers Rail Act at
Step One). Interpreting statutory language with the larger legislative purpose in mind may
provide some guidance at Step One, although purpose is often framed at such a level of
generality that it cannot satisfactorily clarify ambiguous language.
D. Legislative History
Finally, most judges will consider legislative history at Step One, although this tool of
statutory construction is more controversial than those discussed previously. Intentionalists
have traditionally been eager to consider legislative history to illuminate statutory meaning and
congressional intent. See Stephen Breyer, On the Uses of Legislative History in Interpreting
Statutes, 65 S. Cal. L. Rev. 845 (1992); Peter Strauss, The Courts and the Congress: Should
Judges Disdain Political History?, 98 Colum. L. Rev. 242 (1998) (both discussing the
appropriate use of legislative history by courts to provide context and suggest meanings
considered by Congress). Justice Stevens has frequently used legislative history as a guide to
congressional intent, and his opinion in Chevron is consistent with his methodology. Although
he began with the statutory language of the Clean Air Act Amendments of 1977, he also
considered committee reports and statements by key legislators on the floor of Congress as he
searched for the congressional intent about the bubble concept. Only after canvassing the
legislative history and still finding no clear congressional intent on the issue before the Court,
did Stevens defer to the agency’s interpretation of the statute. See also Babbitt v. Sweet Home
Chapter of Communities for a Great Oregon, supra (majority opinion by Stevens). Similarly,
other justices who generally consider legislative materials relevant to legislative intent will rely
on committee reports, floor debate, and other legislative materials at Step One. For recent
opinions considering legislative history, see both the majority and dissent in Solid Waste
Agency, supra.
Textualists spurn the use of legislative history, with the limited exception that legislative
history can be used to refute a finding of absurdity or scrivener’s error. Compare, for example,
Justice Stevens’ majority opinion in Sweet Home with Justice Scalia’s dissent in the case, or the
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opinions by Justice Scalia for the Court and by Justice Stevens in dissent in City of Chicago v.
Environmental Defense Fund, 511 U.S. 328 (1994). Textualists argue that legislative history is
unreliable and often strategically used by legislators to influence courts, and they contend that
using legislative materials violates the bicameralism and presentment requirements in the
Constitution by elevating non-statutory materials to the level of law. See Adrian Vermeule,
Interpretive Choice, 75 N.Y.U. L. Rev. 74 (2000) (arguing that legislative history should not be
used by courts because judges are not competent to separate strategic or inaccurate materials
from materials that reflect genuine intent); John Manning, Textualism as a Nondelegation
Doctrine, 97 Colum. L. Rev. 673 (1997) (making the constitutional argument). Thus, textualists
do not use history at Step One, not because they think it is more appropriately used by agencies
at Step Two, but because they think it is virtually never acceptable to rely on history in
interpretation. In other words, the dispute here about the use of legislative history is not
peculiar to Chevron but is being fought in all realms of statutory interpretation. See William
Eskridge, Jr., Philip Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 295307 (2000) (discussing the arguments concerning the use of legislative history). See also
Strickland, 48 F.3d at 17 (“Legislative history is subject to many and varied criticisms, and the
uncertainty about its value in general parallels the uncertainty about its value in relation to the
Chevron doctrine.”).
The textualist approach to legislative history is in tension with the primary interpretive
techniques used by agency officials in implementing statutes. Agencies are involved in drafting
and writing legislative history, and they work closely with Congress over time, so they are
sophisticated and regular users of legislative history. Agencies also must be concerned that
their implementation strategies and interpretive choices do not irritate members of Congress
who control their budgets and can repeal or alter regulatory statutes. Therefore, agencies
necessarily consider legislative history (although perhaps to discern the intent of the current
Congress rather than that of the enacting one). See Peter Strauss, When the Judge is Not the
Primary Official with Responsibility to Read: Agency Interpretation and the Problem of
Legislative History, 66 Chi.-Kent L. Rev. 321 (1990). If judges refuse to consider legislative
history but agencies practically have no choice but to consider it, it is possible that courts may
often reach interpretations at Step One that agencies have discarded as inconsistent with
legislative history. Pragmatic textualists, like Vermeule, who argue that courts should not use
legislative history for institutional competence reasons may be more comfortable with agency
reliance on such materials than are textualists like Scalia who contend that the use of legislative
history in interpretation violates the Constitution. Nonetheless, both groups of textualists would
deny courts access to legislative history at Step One.
The Seventh Circuit Court of Appeals adopted an unusual approach to the use of
legislative history in Bankers Life & Casualty Co. v. U.S., 142 F.3d 973 (7th Cir. 1998). The
court noted:
“While this circuit has examined legislative history during the first step of Chevron, we
now seem to lean toward reserving consideration of legislative history and other
appropriate factors until the second Chevron step. In the second step, the court
determines whether the regulation harmonizes with the language, origins, and purpose of
the statute. While not dispositive, a court may find various considerations informative –
these considerations might include the consistency of the agency’s interpretation, the
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contemporaneousness of the interpretation, and the robustness of the regulation
following congressional reenactment of the underlying statute.” Id. at 983.
See Jason Bell, Bankers Life & Casualty Co. v. United States: Using a Balanced Approach to
Review a Treasury Regulation Issued Pursuant to the Commissioner's General Authority, 34
New Eng. L. Rev. 449, 471-481 (2000) (approving of court’s unusual interpretive approach in
the limited circumstance of Treasury regulations). See also Ellen Aprill, Muffled Chevron:
Judicial Review of Tax Regulations, 3 Fla. Tax Rev. 51 (1996) (advocating change in
application of Chevron so that legislative history is used only at Step Two if language is not
plain in order to test reasonableness of the agency’s interpretation). Although the court claimed
to use legislative materials at Step Two, the inquiry there was whether the agency’s
interpretation was inconsistent with congressional intent. Although courts often engage in this
analysis at Step Two, it is closely related to Step One because it is part of the judicial inquiry
into clear statutory meaning. See Ronald Levin, The Anatomy of Chevron: Step Two
Reconsidered, 72 Chi.-Kent L. Rev. 1253, 1283-84 (1997) (referring to this category of Step
Two cases as “instances of ‘belatedly discovered clear meaning’”). Thus, the approach in
Bankers Life may not be inconsistent with the general judicial approach of using legislative
history at Step One in the search for clear statutory meaning. If the Seventh Circuit is departing
from the general practice, however, the case is an outlier.
IV.
Textual canons of construction are tools of statutory construction available for
judicial use at Step One.
Courts have long used a set of rules of interpretation as a guide to statutory meaning;
these rules are referred to as the canons of statutory construction. The canons have been
attacked as insufficiently determinate and susceptible to strategic manipulation by willful judges
who choose among competing canons to reach policy outcomes they favor. See, e.g., Karl
Llewellyn, Remarks on the Theory of Appellate Decision and the Rules of Canons about How
Statutes Are To Be Construed, 3 Vand. L. Rev. 395 (1950). This attack exaggerates the
malleability of the canons. While canons cannot give definite answers in all cases, there is a
group of canons that are generally employed in a principled manner and that can shed real light
on statutory meaning. This group of widely accepted canons of construction operates as default
rules to guide not only judicial interpretation but also legislative drafting. They have become
increasingly popular as more judges use textualist methods of interpretation because they
provide additional sources of meaning to replace those that textualists eschew, such as
legislative history.
The question for the Chevron analysis is which canons are considered as traditional tools
of statutory construction suitable for judicial use at Step One. One difficulty is that canons are
employed to clarify and narrow meaning, so their use necessarily implies some amount of
ambiguity, vagueness, generality, or unclarity in the statutory text. To put it differently, canons
usually do not come into play if the language is self-evidently clear, incapable of more than one
meaning. Of course, recourse to dictionaries and statutory structure and purpose,
uncontroversial aspects of the Step One inquiry, occurs because the statutory text, standing
alone, is not entirely pellucid. Thus, even though use of the canons signals some ambiguity in
the statutory text, the current judicial practice of using most of the canons at Step One is
appropriate and consistent with other interpretive practices.
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Textual (or syntactic) canons aim to discover what statutory text typically means to an
ordinary speaker of the language and to discern the plain or ordinary meaning of statutory
provisions. They reflect our linguistic conventions and understandings, and thus they are
helpfully, and uncontroversially, used by courts at Step One. Indeed, the Chevron court worked
to determine the “common English usage” of the text at issue in that case, 467 U.S. at 860, so
rules that are designed to reveal ordinary usage are particularly appropriate at Step One.
Likewise, in National Credit Union Administration v. First National Bank & Trust Co., 522
U.S. 479 (1998), Justice Thomas employed several grammar canons to understand the meaning
of a provision in the Federal Credit Union Act. At Step One, he discussed the relevance of the
use of certain articles, plural rather than singular nouns, and participles rather than prepositions.
Id. at 500, 502. In addition to rules of grammar, the use of dictionaries to illuminate ordinary
meaning is often considered part of the canon urging interpreters to adopt the ordinary meaning
of terms unless the statutory context indicates some specialized usage (perhaps through the use
of statutory definitions).
A related group of syntactic canons is aimed more at describing the linguistic
conventions of legislative drafters rather than those of ordinary people. Most courts do not
distinguish between these two sets of textual rules, apparently believing that both sets follow
common language usage. It may be more accurate, however, to consider some textual canons
either as prescriptive (and thus not necessarily reflecting common usage) or as descriptive of the
more formal use of language when lawmakers draft important documents like statutes. Again,
these canons are commonly and uncontroversially used by courts at Step One. They are wellsuited to the Step One inquiry because they attempt to discover how congressional drafters
intended the statutory language to be understood by their colleagues, agencies, and citizens. See
Hawke, 211 F.3d at 644-645 (explaining when textual canons are appropriately used at Step
One to trump Chevron deference and concluding that they should be used when they are suited
to the statutory context and when relevant canons point to the same understanding). Examples
of these canons are the rule against surplusage (used, for example, by Justice Thomas in NCUA,
522 U.S. at 501); the related canons of noscitur a sociis and ejusdem generis (see, e.g., Justice
Scalia’s dissent in Sweet Home, 515 U.S. at 720-21, and Justice Thomas’ majority opinion in
Christensen, 120 S.Ct. at 1660-1661); the reenactment doctrine (see, e.g., Sweet Home, 515
U.S. at 729 (Stevens, dissenting)); the canon that different statutory sections are to be
interpreted so as to be consistent with one another (see, e.g., United Transportation UnionIllinois Legislative Board v. Surface Transportation Board, 169 F.3d 474, 480 (7th Cir. 1999));
and the related canons that Congress is not presumed to do a futile thing and that each statutory
provision should be given effect (see, e.g., Halverson v. Slater, 206 F.3d 1205, 1207 (D.C. Cir.
2000)).
Use of this second set of textual canons implicates two critical questions. First, scholars
should work to determine how well these canons follow conventions of legislative drafting. Do
lawmakers actually work to avoid surplusage or employ the canons of word relationship like
ejusdem generis and noscitur a sociis? Alternatively, do lawmakers know that courts will use
these canons and thus know that they must take the default rules into account when drafting? If
the canons are designed to replicate congressional usage and understanding, ensuring that they
reflect actual practice is vital. Second, it is not always clear which canons belong in this
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category. For example, some have classified the canon that riders to appropriations bills should
be narrowly construed as a rule that reflects legislative understandings. See, e.g., Sunstein, Law
and Administration after Chevron, supra, at 2107. Perhaps that is right; after all, both Houses
have adopted internal rules designed to limit the scope of appropriations riders. But would
those enacting a rider in a particular case agree that they intended a narrow construction? At
least some of the rules that arguably fall within this subset of textual canons should more
properly be considered in the category of substantive canons related to failures in the legislative
process, discussed below.
V.
Substantive canons, including clear statement rules, are typically considered
traditional tools of statutory construction available for use at Step One. Some
courts do not use the substantive canons protecting important social values and
policies at Step One, deferring instead to the agency’s decision whether to take
account of such policies.
Substantive canons are rules of interpretation that do more than mirror widespread
linguistic conventions; instead, these canons work to vindicate certain policy values. With
some exceptions discussed below, courts use these canons to help them determine whether
statutory meaning is clear. In some cases, the canons appear to be used as part of the Step Two
inquiry, although these cases usually involve the “belatedly discovered clear meaning” analysis
that Levin argues closely resembles a court’s task at Step One. See Ronald Levin, supra, at
1283. In other words, although the court finds that the statutory language is ambiguous, it holds
that a particular canon of construction rules out the agency’s interpretation because it is
inconsistent with the canon. See, e.g., Qualcomm Inc. v. FCC, 181 F.3d 1370 (D.C. Cir. 1999)
(holding that under the canon of constitutional doubt, agency interpretation of ambiguous
statute that raised a serious constitutional question with regard to retroactive application was not
entitled to deference when a reasonable and clearly constitutional alternative was available).
See also Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades
Council, 485 U.S. 568 (1988) (declining to defer to an interpretation by the National Labor
Relations Board when the construction posed a serious question of validity under the First
Amendment and other reasonable interpretations of the language were possible, but apparently
deciding the case at Step One). The difference between a traditional Step One case and a
“belatedly discovered clear meaning” case is that, in the latter instance, the agency may still
have some discretion with respect to its interpretation of ambiguous text as long as the
interpretation does not run afoul of the substantive canon.
Three sets of substantive canons merit attention. First, a set of substantive canons
related to values of the democratic process are designed to account for problems in the
environment in which legislation is drafted. Either they provide incentives for drafters to
improve, or they restrict the damage that might be caused by sloppy drafting and poor
deliberation. Arguably included in this group of canons, for example, is the rule that riders to
appropriations bills should be construed narrowly, a canon that reflects concerns about the
poorer quality of committee and floor deliberation that tends to accompany enactment of such
riders. Textualism itself can be seen as related to these canons because it is designed in part to
improve the democratic process and force lawmakers to express themselves more clearly and
precisely in the text of statutes. See Elizabeth Garrett, Legal Scholarship in the Age of
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Legislation, 34 Tulsa L.J. 679, 695-696 (1999) (discussing the relationship between certain
substantive canons and textualism).
These substantive canons, if justified, are appropriate for use by courts at Step One
because they must be uniformly applied to have the desired effect. If the hope is to improve the
legislative process through the use of these canons, their use is not optional; otherwise, their
incentive effects will be reduced. If they are designed to minimize possible bad consequences
of a flawed legislative process, again their use is not a matter of discretion. Courts should
regularly apply them to favor certain meanings over other possible interpretations. See also
Bernard Bell, Using Statutory Interpretation to Improve the Legislative Process: Can It Be
Done in the Post-Chevron Era?, 13 J.L. & Pol. 105 (1997) (arguing that leaving to agencies the
discretion to apply or ignore some interpretative methodologies designed to improve the
legislative process may undermine their effectiveness).
A second set of substantive canons protect underenforced constitutional norms, that is,
constitutional principles that courts do not protect more aggressively through invalidation of
statutes and that Congress is apt to slight when legislating. See Lawrence Sager, Fair Measure:
The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978)
(describing the notion of underenforced constitutional norms). Take, for example, the
nondelegation doctrine. The Supreme Court has invalidated federal statutes as violations of the
nondelegation doctrine only twice in our history; yet, the concept is still a vibrant one because it
supports canons of statutory construction that require narrow interpretations of broad statutory
language and thereby limit Congress’ ability to make open-ended delegations to agencies. See
Cass Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000). Similarly, the canon that
statutory language will be interpreted so that it does not raise serious constitutional doubts
requires Congress to legislate clearly when it wants to affect behavior in the fuzzy zone between
constitutional and unconstitutional regulation. See, e.g., Edward J. DeBartolo Corp., 485 U.S.
at 575. The canon that legislation is presumed to have only prospective effect and not to have
retroactive application absent a specific indication to the contrary protects an aspect of due
process that courts tend not to protect more aggressively outside the criminal context. See, e.g.,
Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988).
Some of the canons protecting underenforced constitutional norms are applied as clear
statement rules. A clear statement rule is merely a canon of construction that can be overcome
only with very precise and clear textual language; other canons of construction, such as the rule
that laws are presumed to have only prospective effect, can be overcome by specific evidence in
the text or legislative history (at least, for nontextualists). Some canons of construction, like the
rule of lenity, are usually applied as tie-breakers, leading a court to prefer a narrower
construction when all the other sources of legislative meaning provide no clear choice between
competing interpretations. In other words, a clear statement rule is a canon with teeth,
providing relatively significant protection for constitutional or other norms. Supporters of clear
statement rules argue that they force Congress to focus its attention on the particular issue in
order to legislate precisely enough to overcome the clear statement requirement. This additional
deliberation may ensure that constitutional principles are not undermined without substantial
justification and a purposeful decision by the democratically accountable branch. Moreover, if
it is difficult to pass legislation with sufficiently precise language to provide a clear statement,
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then the amount of legislation intruding on areas of constitutional concern should decline. See
generally William Eskridge, Jr. & Philip Frickey, Quasi-Constitutional Law: Clear Statement
Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992) (explaining and critiquing
clear statement rules).
Many of the clear statement principles protect structural or institutional constitutional
norms. For example, there are several clear statement rules relating to federalism, such as the
rule that ambiguous federal statutes will not be interpreted to preempt state law, see National
Ass’n of Regulatory Utility Commissioners v. FCC, 880 F.2d 422 (D.C. Cir. 1989), or the rule
that ambiguous language will not be interpreted to intrude on areas of traditional state authority
or important state governmental functions, see Gregory v. Ashcroft, 501 U.S. 452 (1991). See
also Solid Waste Agency, 121 S.Ct. at 683 (requiring a clear statement at Step One in order to
find congressional intent to “permit[] federal encroachment upon a traditional state power and
refusing to consider Chevron deference in this context). Another clear statement rule requires
that Congress state clearly in the statutory text when it intends a statute to have extraterritorial
effect. See EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991). Another set of clear
statement rules ensure that certain sensitive decisions are made explicitly and transparently by
the most democratically accountable branch, the legislature. See Kent v. Dulles, 357 U.S. 116
(1958) (holding that the executive branch could not withhold passports from “subversives”
without express congressional authorization and thus using a clear statement rule to protect the
constitution right to travel).
The most controversial aspects of clear statement rules are not peculiar to Chevron but
relate generally to the use of clear statement rules. Is it fair to require clear textual statements to
overcome the presumptions of clear statement rules, or does this set too high a hurdle for
Congress, allowing courts effectively to strike down legislation without appearing to be
activist? Are the values protected by clear statement rules legitimate? Given the level of
protection provided by clear statement rules to certain values like federalism and a smaller
national government, they must be justified by convincing reasons rooted in the Constitution or
a theory of democratic governance. Substantive canons, unlike textual canons, are not neutral –
they privilege one vision of the world over others.
Generally, courts use these substantive canons, including the clear statement rules, at
Step One. The justification for their use here is that if they are designed to protect constitutional
objectives, they ought not to be optional at the discretion of the agency. Furthermore, if they
have become part of the interpretive regime that serves as a background for legislative drafting,
they may reflect legislative intention, providing additional justification for their use at Step One.
If lawmakers know that precise textual language is required, for example, to apply federal
mandates to state and local governments, the absence of such language sends a strong signal
about the correct meaning of the text. As with the textual canons, empirical work is required to
determine whether drafters are aware of these substantive canons and whether they can and do
consider them when drafting legislation. See, e.g., Carol Lee, The Political Safeguards of
Federalism? Congressional Responses to Supreme Court Decisions on State and Local
Liability, 20 Urb. Law. 301 (1988) (analyzing four case studies of laws affected by clear
statement rules relating to federalism and finding mixed results).
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Judges, lawyers, and scholars may want to think more rigorously about whether all these
substantive canons relating to constitutional norms should be applied at Step One. Although
some of the canons are clearly intended to force the legislature to make a particular decision
with specific language, e.g., Kent v. Dulles, other canons may be designed only to prohibit
courts from making certain important policy decisions. Therefore, they do not necessarily
reflect a preference that the legislature rather than an administrative agency make the policy
choice. The Chevron context introduces a third institution into the interpretive picture; with
respect to regulatory statutes, the choice is among the three branches rather than between the
legislature and the judiciary. So, for example, Curtis Bradley has argued that Aramco’s clear
statement rule operates to allocate the decision about extraterritoriality to branches other than
the judiciary but does not reflect a preference for congressional as opposed to executive
determination. Curtis Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev. 649,
692-94 (2000). When courts are faced with an ambiguous regulatory statute with uncertain
extraterritorial effect, rather than using the clear statement rule to send the decision back to
Congress (which has arguably demonstrated its unwillingness or inability to speak clearly on
the matter), courts should defer to the executive branch’s interpretation. Justice Breyer made a
similar institutional point in his dissent in Brown & Williamson:
“[O]ne might claim that courts, when interpreting statutes, should assume in close cases
that a decision with ‘enormous social consequences’ … should be made by
democratically elected Members of Congress rather than by unelected agency
administrators. Cf. Kent v. Dulles, 357 U.S. 116, 129 (1958) (assuming Congress did
not want to delegate the power to make rules interfering with exercise of basic human
liberties). If there is such a background canon of interpretation, however, I do not
believe it control the outcome here.
“Insofar as the decision to regulate tobacco reflects the policy of an
administration, it is a decision for which that administration, and those politically elected
officials who support it, must (and will) take responsibility. And the very importance of
the decision taken here, as well as its attendant publicity, means that the public is likely
to be aware of it and to hold those officials politically accountable. Presidents, just like
Members of Congress, are elected by the public. Indeed, the President and Vice
President are the only public officials whom the entire Nation elects. I do not believe
that an administrative agency decision of this magnitude – one that is important,
conspicuous, and controversial – can escape the kind of public scrutiny that is essential
in any democracy. And such a review will take place whether it is the Congress or the
Executive Branch that makes the relevant decision.” 120 S. Ct. at 1330-1331 (Breyer,
dissenting) (citation omitted).
An institutional choice approach, focusing on differences in institutional competence of the
branches of government and the rationales underlying each substantive canon, does not reflect
current practice, however, and might prove a daunting task for courts and scholars.
A third set of substantive canons protect important social policies and values. These
canons include rules like exemptions to tax laws should be construed narrowly; remedial
statutes should be construed broadly; laws should be interpreted to favor Native Americans; and
other similar canons of construction that are designed to protect certain principles or groups.
The proper use of these canons is often intertwined with the sort of policy decisions for which
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agencies are better suited than courts; therefore, some courts hold that their application to
ambiguous statutory language is more appropriate for Step Two deference. There is, however,
significant variation in judicial practice with respect to this group of canons. If courts view
these canons as relatively settled default rules that provide an interpretive scheme against which
Congress legislates, they may feel comfortable using them at Step One to ascertain
congressional intent. See, e.g., King v. St. Vincent’s Hospital, 502 U.S. 215, 220-221 n.9 (1991)
(in a non-Chevron case, presuming that Congress legislates with an understanding of
interpretive principles like the canon that statues conferring veterans’ benefits should be
construed in favor of the beneficiaries).
Some policy canons have particular relevance for regulatory statutes, such as the canon
that statutes should not be interpreted to require very large expenditures of money to achieve
trivial or de minimis gains. An interpretation requiring absolute protection of safety or health
no matter the cost would be nonsensical given the reality of limited resources. In Public Citizen
v. Young, 831 F.2d 1108, 1113-1118 (D.C. Cir. 1987), the D.C. Circuit was faced with the
question whether the FDA could include a de minimis exception in the law regulating color
additives (the “Delaney clause”), thereby allowing the FDA to decline to regulate dyes when it
found that the cancer risks they posed were trivial. The canon of construction de minimis non
curat lex seemed particularly appropriate in this case because it is designed to promote
rationality in the law and to avoid costly regulation when the risks are minimal. Id. at 1112.
Indeed, under an absolutist understanding of the Delaney Clause, which targets only
carcinogenic effects, regulation was occasionally counterproductive as industry shifted to more
dangerous but non-carcinogenic additives. Nonetheless, the Court struck down the agency’s
interpretation and disallowed any de minimis exception to the Delaney Clause because the
textual language was phrased in absolute terms and the legislative history reflected
congressional intent to enact a rule without any exceptions. This case is unusual because of the
clear and absolute statutory language; often, the text is ambiguous enough to allow flexibility in
interpretation. The Young panel hinted that in such a case, the agency should determine
whether the statute should be interpreted to include a de minimis exception or not and the court
should defer to its decision. Id.
In Michigan Citizens for an Independent Press v. Thornburgh, 868 F.2d 1285 (D.C.
Cir.), aff’d by an equally divided Court, 493 U.S. 38 (1989), the court was faced with an
antitrust challenge to a Joint Operating Agreement (“JOA”) between two competing newspapers
under the Newspaper Preservation Act. Those challenging the Attorney General’s interpretation
of the Act argued that the construction allowing the JOA was impermissible because it violated
“the interpretive canon that exemptions to the antitrust laws – like all exemptions – should be
narrowly construed.” Id. at 1292. The majority rejected this argument and discussed the role of
such substantive canons in a Chevron case:
“But Chevron implicitly precluded courts from picking and choosing among various
canons of statutory construction to reject reasonable agency interpretations of
ambiguous statutes. If a statute is ambiguous, a reviewing court cannot reverse an
agency decision merely because it failed to rely on any one of a number of canons of
construction that might have shaded the interpretation a few degrees in one direction or
another.
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“We do not mean to say that canons of construction are completely irrelevant in
the post-Chevron era. If employment of an accepted canon of construction illustrates
that Congress had a specific intent on the issue in question, then the case can be disposed
of under the first prong of Chevron. [The court then referred approvingly to a number of
textual canons uncontroversially used at Step One.]
“In this type of case by contrast, the Attorney General is called upon to balance
two legislative policies in tension: The proconsumer direction of the antitrust laws and a
congressional desire embodied in the Newspaper Protection Act that diverse editorial
voices be preserved despite the unique economics of the newspaper industry. This is
precisely the paradigm situation Chevron addressed.” Id. at 1292-1293 (citations
omitted).
This passage is susceptible to a number of interpretations. Perhaps the court found only that use
of the canon to construe antitrust exemptions narrowly, which does not have the strength of a
clear statement rule, insufficiently clarified the Newspaper Protection Act’s ambiguous
language. But see id. at 1300 n.6 (Ginsburg, dissenting) (“Under Chevron, is it the Attorney
General’s prerogative to construe an ambiguously-phrased antitrust law exemption expansively?
The answer to [this] question[] … must be ‘No.’”). Most of the substantive canons in this third
category are not clear statement rules but rather operate as presumptions or tiebreakers, so their
use by courts may not eliminate the need for deference in some cases. Perhaps the court held
that this case presented an example of dueling substantive policies and thus the canon of
construction relating to antitrust exemptions was not helpful at Step One. Or perhaps the court
believed that this policy canon implicated the kind of policy concerns more appropriately left to
the agency to address when statutory language is unclear or leaves a gap.
The judicial practice with respect to other policy canons is inconsistent, and courts do
not tend to provide explanations of decisions to use a canon to find clear meaning at Step One
or to defer to an agency interpretation notwithstanding an arguably relevant canon. Take, for
example, the canon favoring Native Americans in interpreting statutes. In some cases, the
canon trumps Chevron deference. See, e.g., Ramah Navajo Chapter v. Lujan, 112 F.3d 1455,
1462 (10th Cir. 1997) (also finding the canon consistent with the statute’s purpose). In some
cases, the court defers to an agency interpretation that competes with the canon. See, e.g.,
Haynes v. U.S., 891 F.2d 235, 239 (9th Cir. 1989). In other cases, the canon is used to test the
reasonableness of the agency’s interpretation of an ambiguous statute. See, e.g., Arizona Public
Service Co. v. EPA, 211 F.3d 1280, 1294 (D.C. Cir. 2000) (“In light of the … canon of statutory
interpretation calling for statutes to be interpreted favorably towards Native American nations,
we cannot condemn as unreasonable” the EPA’s interpretation of “reservation”). See also
Philip Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian
Tribal Authority over Nonmembers, 109 Yale L.J. 1, 18-27 (1999) (discussing the uneven
application of the canon generally and rationales justifying it).
The judicial inconsistency with respect to canons protecting important social policies
and values may reflect the debate about their justifications. Some scholars contend that canons
that protect important and well-established social policies are comparable to canons that protect
underenforced constitutional norms, like the nondelegation canons. See, e.g., Sunstein,
Nondelegation Canons, supra, at 334-35 (classifying many substantive canons as
constitutionally based nondelegation canons); but see Sunstein, Law and Administration After
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Chevron, supra, at 2116-17 (arguing that Chevron deference should trump judicial application
of canons designed to counteract regulatory irrationality). Just as the canons relating to
constitutional norms are applied at Step One, so should the canons protecting important social
policies, even if they do not rise to the level of constitutional values. This argument has less
force with respect to canons designed to improve regulatory policies or correct regulatory
failures. These canons, like the de minimis exception in Public Citizen v. Young, seem to fall
squarely within agency competence, at least relative to judicial competence, and thus their
application should be left to the agency in formulating a reasonable interpretation of ambiguous
language. See Ober United Travel Agency v. Department of Labor, 135 F.3d 822, 825 (D.C.
Cir. 1998) (“[W]e have recognized that in a post-Chevron era such policy-oriented canons of
statutory construction may not be used to evaluate agency interpretations of ambiguous
statutes.”); Amax Land Co. v. Quarterman, 181 F.3d 1356, 1362 (D.C. Cir. 1999) (citing
Michigan Citizens for an Independent Press for proposition that canons that “embody a policy
choice” should not be used by courts at Step One).
If the courts treat some substantive canons differently from others for purposes of
Chevron, applying most at Step One but deferring in a few cases to the agency’s decision
whether to rely on the policies they embody, then the inherent difficulty in categorizing
substantive canons may become more acute. Often it is tricky to distinguish canons protecting
important social policies from those that protect structural or institutional constitutional values.
For example, how should courts categorize the canon favoring interpretations of ambiguous
language in statutes and treaties that they benefit Native Americans? How should courts treat
the clear statement rule that requires an explicit textual waiver of the sovereign immunity of the
United States, see United States Department of Energy v. Ohio, 503 U.S. 607, 615 (1992)? Is
the canon requiring a clear statement in order to give a statute extraterritorial effect a
constitutionally-based canon or one merely protecting certain political choices? All of these
canons can be viewed as related to institutional arrangements set forth in the constitutional
design. Fuzziness in the line between the two sets of canons may empower judges to resolve
more cases at Step One. Arguably, the more canons available for use at Step One, the fewer
cases that will proceed to Step Two, and the less the discretion accorded to agencies in their
interpretation of regulatory statutes. Thus, judges who favor a different interpretation than a
reasonable one that the agency advocates may be able deploy helpful canons at Step One,
characterizing them as constitutionally-based canons, so that they find a clear meaning different
from the agency’s interpretation.
VI.
The court must find at Step One clear statutory meaning on the precise issue before
it. Otherwise, it must defer to a reasonable agency interpretation of the statutory
language.
The key passage and footnote from Chevron that articulate the method of statutory
interpretation refer four times to congressional intent on the “precise” or “specific” issue
confronting the court. See Chevron, 467 U.S. at 842-43 & n.9. This emphasis cannot be
accidental, although this aspect of the Chevron test is seldom discussed in opinions interpreting
regulatory statutes. But see Gonzalez v. Reno, 212 F.3d 1338, 1348 (11th Cir. 2000) (finding
that Congress had spoken to the question of what aliens could apply for asylum but finding
silence on the precise question o what procedures must be followed to apply or what
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information should be included in an application). Perhaps the best way to understand
Chevron’s phrasing is that it emphasizes to courts the change in their interpretive role and
encourages them to apply Chevron so that Step One does not dominate the inquiry. If a court
discerns a general meaning, say to promote health or safety, it cannot infer from that general
purpose a clear meaning on a narrower question if the statutory language relevant to the precise
and specific question is ambiguous.
For example, in Chevron, the Court concluded that the 1977 Clean Air Act Amendments
reflected the general congressional intent to pursue certain environmental objectives while
allowing reasonable economic growth. But the Court could not find in the text or legislative
history any “actual intent” of Congress on the precise issue of whether the bubble concept was
compatible with the term “stationary source.” Indeed, the Court noted with respect to the
legislative history that “[t]he general remarks [of relevant lawmakers] ‘were obviously not made
with this narrow issue in mind and they cannot be said to demonstrate a Congressional desire.’”
467 U.S. at 862 (quoting Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 161, 168-69
(1945)). Thus, it is not acceptable at Step One for a court to ascertain a general meaning of
statutory terms that could support several more precise understandings and then to select among
those specific alternatives. In such a case, courts must defer to the agency’s selection, as long
as the interpretation it chooses is not contrary to the general purpose and policy of the Act.
Chevron’s reliance on the notion of the “precise” issue also underscores the importance
of how the interpretive question before the agency and the court is framed. A rigorous focus on
articulating the legal issue can help to clarify the appropriate judicial treatment for the set of
Chevron cases that Levin characterizes as presenting questions of “belatedly clear congressional
meaning.” Ronald Levin, supra, at 1282-1283. In such cases, courts as part of the Step Two
analysis rule out a particular agency interpretation of admittedly ambiguous statutory language
as inconsistent with clear congressional intent. Take, for example, Qualcomm Inc. v. FCC, 181
F.3d 1370 (D.C. Cir. 1999). The Court applied the canon of constitutional doubt and rejected
an agency interpretation of an ambiguous statute that raised a serious constitutional question of
retroactivity when a reasonable and clearly constitutional alternative was available. This kind
of analysis is little different from the Step One analysis in, for example, Cardoza-Fonseca.
There the Court refused to defer to the INS’ interpretation of “well-founded fear” because it
conflicted with clear congressional intent, although Justice Stevens acknowledged that the term
was ambiguous enough to provide the agency some flexibility in applying the standard in the
future. See 480 U.S. at 448. See also City of Chicago v. Environmental Defense Fund, Inc.,
511 U.S. 328, 339 (1994) (holding that the EPA’s interpretation “goes beyond the scope of
whatever ambiguity § 3001(i) contains”).
Often courts undertake this analysis at Step Two, even though the techniques used to
resolve the issue should be identical to those used at Step One. It clarifies the Chevron test and
the scope of the court’s role if judges explicitly cast these cases as Step One inquiries, and they
can do so by reframing the precise question. Levin suggests that the precise question in these
cases is “whether Congress has clearly ruled out an option the agency has chosen, or a premise
on which the agency has sought to act.” Ronald Levin, supra, at 1283. See also Ronald Levin,
Scope-of-Review Doctrine Restated: An Administrative Law Section Report, 38 Admin. L. Rev.
239, 250-51 (1986) (providing similar analysis in a non-Chevron framework). The court might
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find clear statutory meaning at Step One with respect to this precise question, even though the
statutory provision remains somewhat ambiguous and triggers some deference at Step Two.
Understood in this way, such cases easily become Step One decisions, rather than Step Two
cases as they are often characterized by courts.
The emphasis on the “precise question” may also clarify a passage in Brown &
Williamson, discussed previously. Before it began to discuss its view that Congress would
never have delegated to an agency the question whether to regulate tobacco because it is such a
politically significant decision, the majority observed that “our inquiry into whether Congress
has directly spoken to the precise question at issue is shaped, at least in some measure, by the
nature of the question presented.” 120 S.Ct. at 1314. By focusing on the precise question of
tobacco regulation rather than on the more general question of whether the FDA had “broad
jurisdictional authority,” see id. at 1318 (Breyer, dissenting), the Court more easily reached its
conclusion that Congress could never have intended the FDA’s interpretation of the statute. In
this way, the term “precise question” may indirectly move judges toward the weaker version of
the Chevron presumption, favored by Justice Breyer in his scholarship, instead of the stronger
version, favored by Justice Scalia.
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