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Agencies Interpreting Courts Interpreting Statutes: The Deference Conundrum Of A Divided Supreme Court, Robin K. Craig

Robin K. Craig

Plurality decisions from the U.S. Supreme Court demand interpretation, especially because they tend to occur when the Court faces important but divisive legal issues. Most courts, agencies, and scholars have assumed that federal agencies are in no better position than the lower federal courts when confronted with a potentially precedential Supreme Court plurality decision—that is, that the agency must construe the Justices’ various opinions in search of a controlling rationale. In so doing, however, the agency eschews any claim to Chevron deference, because it is no longer implementing a statute pursuant to congressionally delegated authority. Instead, it is merely an …