-128-
843. After Chevron, “there is a range of permissible
interpretations * * * [and] the agency is free to move from one
to another, so long as the most recent interpretation is
reasonable its antiquity should make no difference.” Barnhart v.
Walton, 535 U.S. 212, 226 (2002) (Scalia, J., concurring in part
and concurring in judgment).
It’s important to recognize that, in most cases, applying
either National Muffler or Chevron will end up producing the same
result--when a statute is ambiguous, agencies do have
considerable leeway in devising regulations that clarify the law.
But the most important class of cases in which results under the
two tests diverge is the one into which this case falls--when an
agency writes a regulation that changes existing law, either in
the form of a previous regulation or judicial construction. The
Supreme Court has consistently held that Chevron allows such
reversals.11 Chevron is such an important case because it was so
explicit in recognizing that resolution of ambiguities in a
11 See, e.g., Brand X, 545 U.S. , 125 S. Ct. at 2699
(2005) (agency reversal permissible as it is charged with
interpreting ambiguous statutes); Smiley v. Citibank (South
Dakota), N.A., 517 U.S. 735, 742 (1996) (prior contradictory
agency position is not fatal); Rust v. Sullivan, 500 U.S. 173,
186-187 (1991) (changing circumstances require that an agency’s
position not be “carved in stone”). Of course, such changes are
permissible under National Muffler too. (Indeed, National
Muffler involved a regulation that changed existing law. 440
U.S. at 481-483.) But they would seem to be less probable
because of the National Muffler factors that concentrate on
consistency in the law over time.
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