Chevron Step 2 vs State Farm Forum

[Phife Dawg]

Can someone explain quickly when, in an essay, if Chevron step 0 is passed and Chevron should apply, it'd be appropriate to talk about State Farm style arbitrary & capricious/hard look review instead of merely whether the decision is a possible one.

[Kage3212]

Ill take a stab at this one.

Short and sweet; the answer to your question is no, if you get into Chevron, Skidmore, or Mead even, you are past actual arbitrary and capricious review. (However, Step 2 of Chevron can be seen as a type of A&C review, but keep in mind it is not A&C review, step 2 asks the questions as to whether the agency's action is reasonable or permissible)

So, I like to think about Chevron as a four step process (professor approved). The first step we ask whether the delegation of power from Congress (found in the enabling statute) is IMPLICIT or EXPLICIT. Explicit delegation comes about when there is a super specific directive from Congress to the agency telling it exactly what it needs to do and how to do it (*promulgate rules and regulations through notice and comment rulemaking that concern taxes in the tobacco industry*). If you have an explicit delegation such as this you dont go into any Chevron or any of that mess and go directly to Arbitrary & Capricious review.

On the other hand, if you have implicit delegation from Congress (*carry out the purpose of this act*) then you go on to the second step of the process, Step 0, and ask whether this delegation of power from congress grants the agency the ability to have "force of law power" in doing whatever it is doing. If yes, are they exercising this? If yes to both, go to Chevron. If no to either one you are in Skidmore territory.

So lets assume, for purposes of your question, that agency has passed all that and passes step 1 of Chevron. So now we are at step 2 of Chevron and we are asking whether the agency's actions are "reasonable" or "permissible." The difference here is that the question is phrased differently from the arbitrary and capricious standard; in other words, we are asking whether the agency has acted in a reasonable or permissible way NOT whether the agency has acted arbitrarily or capriciously. This may certainly be a linguistic difference (what the hell do the words reasonable or permissible even mean, and how do they differentiate from the words arbitrary and capricious? Im not sure this is a settled matter, but regardless the question has to be looked at differently. It seems to me that these words mean what the court wants them to mean).

Cliff Notes: If the enabling statue that delegates authority to the agency is explicit....then use A&C standard. If the statute is implicit...then move on to Chevron and use reasonable or permissible standard if you get there.

[kalvano]

Chevron is specifically for when an agency interprets something. State Farm is A&C review, which is more wide-ranging.

[Citizen Genet]

Can someone explain quickly when, in an essay, if Chevron step 0 is passed and Chevron should apply, it'd be appropriate to talk about State Farm style arbitrary & capricious/hard look review instead of merely whether the decision is a possible one.

Hm, I disagree a little with one of the answers above so I'll give my insight.

The first thing to recognize is that Chevron is specifically about legal interpretations. The real issue you are getting at with Chevron is whether a particular interpretation of a statute is permissible. When an agency promulgates a regulation under a statute or applies a statute in a particular way, it is interpreting the statute to authorize that.

Arbitrary and capricious review applies to all agency actions (by the terms of the statute). The "hard look" doctrine from State Farm says that part of a&c review is essentially forcing an agency to consider certain information, exclude considerations that Congress did not intend them to consider, and then explain its reasoning. (Re-read State Farm for examples of what an agency must consider.)

The real issue with your question is this: In Chevron Step Zero, part of your analysis under Christensen and Mead is whether the agency gave its interpretation in a form that indicated Congress delegated its authority to the agency. (This is Justice Souter's conclusion, not mine.) That generally means that formal adjudication, formal rulemaking, and N&C rulemaking will be sufficient to show this. If you pass this stage, then you go on to Chevron Step One and Two where you start considering whether the interpretation of the statute is a permissible one. The reason that "hard look" review isn't really necessary after Chevron Step Two is that in order to get past Step Zero, you had to show they followed the strict processes of rulemaking or formal adjudication. And those strict processes will typically satisfy the requirements of the "hard look" doctrine.

Now, if there is some requirement that "hard look" review imposes that wouldn't be satisfied in N&C rulemaking (the lower requirements to be in the Mead safe harbor), I am not sure what it is. But if there is, that is when you would want to do hard look review after finishing Chevron Step Two.

[kalvano]

Some of this might help:














On my iPad, copy and paste from Dropbox wasn't working well.

[cardinals1989]

Chevron is limited to statutory interpretation issues, while AC review is more wide-ranging. However, in Judalang v. Holder, 132 S.Ct. 476, n. 7, the Court recognized that the analysis is essentially the same. It is still a matter of confusion what the two actually do.

Or at least this is my professor’s answer to it.