The Clear-Statement Chevron Canon, 66 DePaul L. Rev. 819 (2017)

My latest article, The Clear-Statement Chevron Canon, has been published in De Paul Law Review.

Abstract

As Chevron has fallen into disfavor with some, judges and scholars have begun searching for alternative formulations of administrative law’s favorite deference doctrine. Some judges have embraced Matthew Stephenson and Adrian Vermeule’s One-Step Chevron. But One-Step Chevron’s theoretical foundations lack practical application.

This Article argues that judges can make One-Step Chevron workable by reframing it as a clear-statement rule: “Unless refuted by the clear language of the statute, a court must defer to an agency interpretation.” Scholars have long labelled Chevron as a “canon,” but have never framed Chevron as a substantive canon. Chevron works as a substantive canon without disturbing the traditional Chevron analysis. The Chevron Canon reforms the two-step deference doctrine using an interpretive tool familiar to all judges. This Article also resolves a longstanding dispute about the place of Chevron on the continuum of substantive canons. The Chevron Canon trumps tiebreaking canons, but succumbs to institutional clear-statement rules.

The Chevron Canon promotes simplicity and casts Chevron as a traditional tool of statutory interpretation. As judges reconsider Chevron, the Chevron Canon presents a more intuitive option than One-Step Chevron.

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