GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

1997

Status

Accepted

Abstract

Conflicts between Chevron and stare decisis can arise in several contexts. Pierce first identifies the values that are furthered by Chevron and stare decisis and then analyzes the judicial decisions that resolve conflicts between the two doctrines. The Supreme Court has announced and applied a series of mechanical rules to resolve such conflicts, e.g., Supreme Court precedents always trump Chevron deference, while even longstanding agency and circuit court precedents apparently count for nothing when the Court attempts to determine the meaning of statutory language. Circuit courts have announced and applied a dramatically different set of rules for resolving conflicts between Chevron and circuit precedents : (1) a court should analyze the circuit precedent with care to determine whether it can be characterized in a manner that avoids a conflict with Chevron (2) when an agency announces a construction that passes the Chevron test but that conflicts with a pre- Chevron circuit precedent, a court should uphold the agency construction, and overrule the precedent; and, (3) when an agency uses the notice and comment rulemaking process to announce a construction that conflicts with a post-Chevron circuit precedent, a court should use the occasion to reconsider the continuing validity of the precedent. Pierce argues that the methods of resolving conflicts between Chevron and stare decisis developed by the circuit courts are superior to the methods developed by the Supreme Court.

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