Remedial Chevron

Abstract

Under Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), courts must defer to reasonable agency interpretations of statutes they are charged with administering. Although this deference captures the institutional advantages of agencies in interpreting statutes, critics — most notably Justices Thomas and Gorsuch — have raised serious challenges to its legality. They have argued that Chevron violates Article III by constraining the interpretive power of the federal courts; rests on the unjustifiable assumption that Congress has delegated primary interpretive authority to agencies; and is inconsistent with the Administrative Procedure Act, which directs federal courts to review statutes de novo. These challenges threaten to unravel Chevron deference, thereby losing the functional, institutional benefits of that deference and casting doubt on countless agency regulations and adjudications.

To meet these concerns, this Essay proposes restructuring Chevron as a limitation on the remedial power of the courts instead of a doctrine of interpretation. Under this approach, courts would not defer to agency interpretations. Instead, this Remedial Chevron would limit the circumstances under which courts could vacate agency actions as inconsistent with statutes. Courts could vacate agency actions on that ground only if the agency’s interpretation was unreasonable. This approach would avoid the legal objections to Chevron while largely preserving the function benefits of judicial deference to agency interpretations.

Keywords: Administrative Law, Chevron, Remedies