In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. Chevron as construction is supported by powerful arguments; it is consistent with the underlying sources of law, and agencies have relevant comparative advantages in developing implementing principles. Chevron as interpretation is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.
Cornell Law Review, Vol. 105, 1465-1487.
Scholarly Commons Citation
Solum, Lawrence B. and Sunstein, Cass R., "Chevron As Construction" (2020). Georgetown Law Faculty Publications and Other Works. 2314.