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Can someone explain to me exactly what this step is all about? First we have to decide if the issue is a major policy issue. If it is not, then proceed to step 1 & step 2. If it is a major policy issue, then what do you do at step 0? Interpret what Congress meant by the ambiguity in the statute?



Thanks for any help..

I guess what I'm asking is at Step 0, are we determining whether the issue is a major policy one? Or interpreting what Congress has said about the issue if it is a major policy one? Or neither?

Charles Barkley wrote:Can someone explain to me exactly what this step is all about? First we have to decide if the issue is a major policy issue. If it is not, then proceed to step 1 & step 2. If it is a major policy issue, then what do you do at step 0? Interpret what Congress meant by the ambiguity in the statute?



Thanks for any help..

Step 0 is the Mead inquiry--did the agency action have the "force of law"? If yes, then apply Chevron. If not, then apply Skidmore.

We didn't cover Mead or Skidmore

Charles Barkley wrote:We didn't cover Mead or Skidmore

Seriously? How about Christensen or Brand X? If not, I don't know how your teacher explained standards or review re: policy questions. Maybe he/she is just trying to teach you his/her own theory of how Chevron works. There are a lot of different views if you ask different academics and judges, but Mead, Christensen, and Brand X are the three most significant SCOTUS cases on it lately.

Yeah, the professor definitely just taught us their own policy on how Chevron step 0 works. Massachusetts v. EPA was used as an example as to how step 0 is applied now (even though there is no mention of step 0 in the case, unless i'm mistaken)?

I was just confused by my class notes. I'll email the professor, again. Thanks for your help.

We didn't cover any of those cases, for what it's worth.

Charles Barkley wrote:We didn't cover any of those cases, for what it's worth.

Too lazy to do anything more than copy from my outline (and too lazy to fix the formatting):


2. Chevron Deference
a. 3 Step Test
i. Step 0 – Has the agency been delegated with rulemaking authority?
1. Did Congress delegate to the agency the power to make rules having the force of law? As to this issue? (Gonzales)
a. No deference on issues of constitutional law
b. Agency receives deference to the statute it administers, but does not receive deference as to generally applicable statutes (APA, Federal Tort Claims Act, etc.)
i. DC COA has held that Agencies should not get deference when more than 1 agency administers a statute
2. Did the agency act in a form that entitled it to Chevron deference? (Mead)
a. Generally thought that degree of formality of rulemaking process matters – notice and comment rulemaking or formal adjudication strongly preferred
b. Thought other forms of agency action might be entitled to deference
3. Is some other type of deference available? (Skidmore or Auer)
4. Other notes:
a. Agency interpretations of court decisions are not entitled to deference
b. Agency may depart from a prior court interpretation of the statute the Agency administers if the court decision was not based on a determination that Congress had spoken to the precise issue in question (Brand X)
i. Agencies must provide an explanation as to why they departed from the court’s interpretation
ii. J. Scalia disagrees – feels that once a court reaches an interpretation, Agencies should be bound by that interpretation
c. No deference to DOJ interpretation of criminal statutes
d. Litigation positions are not entitled to Chevron Deference
ii. Step 1 – Did Congress have intent as to the precise question at issue?
1. Strongly effected by the Court’s choice of statutory interpretation
iii. Step 2 – Is the agency’s interpretation a reasonable interpretation?
1. Usually when a court reaches step 2, the agency will win
2. Suggested that there should be a requirement of adequate explanation
a. Suggestion that a traditional arbitrary & capricious review should be conducted at Step 2

Massachusetts v. EPA definitely post-dates those other cases. Maybe your professor sees that as a new direction and didn't bother teaching you what he thinks is no longer valid. It's absolutely an area of law always in flux, so yeah, definitely learn what your professor thinks is the "right" way to analyze these problems.

What's weird is that Mass. v. EPA barely cites Chevron, though. I don't think it really explains all of step zero; rather, just half of it. The argument is that Congress doesn't hide elephants in mouse holes, so the agency probably wasn't given authority over such a "major issue" to begin with (see Brown & Williamson). That plays into step zero, but it doesn't really define step zero. (It arguably could apply to step one as well--see ABA v. FTC.) To act with the "force of law" (as step zero requires), the agency has to have authority to to so. In a "major issues" case, however, the agency would not have such authority because the court assumes that Congress never gave the agency such sweeping authority in the first place. Thus, it cannot act with the "force of law."

So one could argue that Step 0 really has two parts: (1) did Congress give the agency the authority to act with the force of law, and (2) if so, did the agency actually act with the force of law. To me, (1) is implicit in (2), rather than being a separate inquiry. Your professor probably equates Step 0 and (1), and thinks (2) is part of Step 1. There aren't necessarily bright doctrinal lines aside from the ones your professor lays out for you. The concepts bleed into one another for sure, and the labels used may vary. I'm just surprised you never learned about force of law in this context. Even Wikipedia notes that that's what Step 0 is about. (Hopefully you at least ran into force of law in the context of legislative vs. interpretive rules.)

The bottom line is that Step 0 erases the old presumption that Congress always intends for the agency to fill any gaps in an ambiguous statute if the agency has substantive rulemaking authority. (That what gets Scalia's goat.) No wonder you're confused. Sounds like your professor gave your short shrift on this topic.

Edit: Also, vamedic3's post is a pretty good summary. It looks quite similar to my outline on Chevron. But if it looks completely weird (since these concepts aren't necessarily totally discrete), either you missed something, or your professor did things differently.

Hi Everyone: Does any of you have practice exams for this class (regulatory/admin state)? It's a new class at my school and I am desperately looking for practice exams. I have a few exams in hand that I would be willing to exchange with anyone who is interested. Thanks!