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Marco Lunardelli
U.S. Law Reviews: A Focus On Administrative Law
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L.B. Solum, C.R. Sunstein, Chevron as Construction, 105 Cornell L. Rev. 1465 (2020) In this article, professors Solum and Sunstein draw a clear distinction between the Chevron doctrine used for interpretation and for construction. Such a distinction is grounded in the Supreme Court’s language in Chevron itself [Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)], and thus in its so-called two steps. The first step is to verify “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” [Chevron, 467 U.S., at 842–43]. If the intent of Congress is not clear, step two occurs. In that case, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute” [Chevron, 467 U.S., at 843]. The article assumes that it is possible to identify “two quite distinct Chevron doctrines” (1467). By reading Chevron as construction, agencies should be recognized some deference, because of their technical expertise, and such deference does not undermine the separation of powers principle (1471).

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