Chevron Lite: How Much Deference Should Courts Give to State Agency Interpretation?

16 Pages Posted: 11 Mar 2010

See all articles by Ann Graham

Ann Graham

Hamline University School of Law

Date Written: July 1, 2008

Abstract

Administrative lawyers view the Chevron Doctrine as the touchstone for analyzing cases involving judicial review of federal agency interpretation of federal statute. The facts of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the 1984 U.S. Supreme Court case in which the Chevron Two Step test was first articulated, involved a federal court’s review of interpretation by a federal administrative agency of a federal statute. Thus, what this landmark case has to say about the proper standard for judicial review of a state agency’s interpretation of state law can be discerned in three ways:

(1) By state case law that applies the Chevron Doctrine by analogy; (2) By state statute that incorporates Chevron’s two-step test; or, (3) By doctrinal analysis of the extent to which the Chevron analysis should be applied.

This article reviews a continuum of standards for judicial deference to state agencies ranging from express adoption of the Chevron doctrine to outright rejection of Chevron’s applicability. A middle ground approach sounds much like the federal Skidmore test, including the agency’s statutory interpretation as one factor to be considered by the court.

The author recommends a model calling for a fact-and-circumstance review of the agency interpretation like the federal Skidmore test, but with the relevant factors clearly enumerated. Factors should include: agency interpretation, plain language, legislative history, consistency with legislative purpose and the regulatory scheme, case law from other jurisdictions, and a catch-all category of "other considerations."

Keywords: Chevron Doctrine, administrative law, judicial review, Skidmore test, statutory interpretation

JEL Classification: K23

Suggested Citation

Graham, Ann, Chevron Lite: How Much Deference Should Courts Give to State Agency Interpretation? (July 1, 2008). Louisiana Law Review, Vol. 68, No. 4, 2008, Available at SSRN: https://ssrn.com/abstract=1565817

Ann Graham (Contact Author)

Hamline University School of Law ( email )

1536 Hewitt Avenue
Saint Paul, MN 55104-1237
United States
651-523-2349 (Phone)
651-523-2236 (Fax)

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