I was excited to see that one of my posts triggered a comment from one of my savvy readers. In response to my tongue-in-cheek post titled "Did SAS Institute v. IANCU overrule Chevron After All?," Andy posted this comment:

Not quite getting it. "Unable to interpret" seems just another way of saying "open to more than one interpretation." Empirically, there are lots of times that courts have agreed they can't decide what a statute says, and moved on to step two.
And Chevron itself mentioned statutory construction as part of step one. So if Chevron's dead as a result, then it's always been dead?

It's a great comment, and I'd like to thank Andy for reading the post and taking the time to join in on the discussion. Here's my reply:

I realize the Court didn't actually overrule Chevron in IANCU. In fact, the opinion expressly declines to decide Chevron's fate. My point is that the way the Court framed the standard is unusual and, if taken literally, would have the effect of narrowing Chevron substantially (at the very least). I stand by that thesis, and I'll explain why.

Before IANCU, I don't think the "unable to discern" after "employing the traditional tools of statutory construction" framing of the standard had ever been used. There are a few pre-IANCU lower-court decisions stating the standard in similar terms, but only a few. Since IANCU, however, lower courts have already employed its restrictive framing six times.

So am I overstating how far the Court went in IANCU? Absolutely, but only to make a point--namely that a subtle change in the framing of the standard in a Supreme Court decision will often have a big impact in lower-court decisions (as it should). We're seeing that already with the IANCU novelty.

I also take your point that "unable to discern" might just mean that the statutory language is susceptible to more than one interpretation, but if we accept that view, aren't we committed to the conclusion that in pre-Chevron cases (and post-Chevron cases that involve statutory interpretation questions arising (1) outside of the adlaw context or (2)  where step zero problem that prevents the Court from applying Chevron) courts only "discern Congress's meaning" in cases where the statutory language involved is only susceptible to one interpretation? I don't know about that. I'd wager that most judges believe they have discerned Congress's meaning even when the statutory provision at issue is susceptible to more than one interpretation. Do you disagree?

And, of course, you're right that Chevron instructed lower courts to apply the traditional tools of statutory construction at step one. But it's not so clear that courts have gotten that message when applying Chevron in actual cases. SCOTUS has unquestionably led by example in applying robust textual analysis before turning to step two, but there is evidence that lower courts follow in its footsteps inconsistently at best. Empirical studies have shown, for example, that lower courts apply a far stronger dose of deference under Chevron than SCOTUS does.  See Barnett & Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1, 6 (2017). Scholars have thus perceived a difference between the “Chevron Supreme” on offer in the Supreme Court and “Chevron Regular” retailed by the lower courts. Id.

So, Andy, thanks again for reading the post and particularly for commenting! Please keep offering your thoughts. I really enjoy the discussion.

Responding to Andy's Excellent Comment
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