-136-
to an agency on a particular question [that] is implicit rather
than explicit”
! INS v. Jong Ha Wang, 450 U.S. 139, 140 (1981),
analyzing reviewability of the Attorney General’s
decision to suspend deportation of an illegal
alien under 8 U.S.C. � 1254(a)(1) if it would
“result in extreme hardship * * *,” and
! Train v. NRDC, 421 U.S. 60, 67 (1975) analyzing
reviewability of the EPA Administrator’s approval
of a state’s Clean Air Act plan under 42 U.S.C.
� 1857c(5)(a)(2) requiring him to approve a plan
“if he determines that it was adopted after
reasonable notice and hearing.”
Neither of these two cases involved direct review of
regulations at all, but instead were reviews of individual
decisions by agencies in the course of which they had to construe
disputed statutory terms.
In short, I think that the contrast that Chevron made was
between review of regulations put through notice-and-comment
rulemaking, and construction of statutory terms in the course of
administrative adjudication.15 Reading Chevron this way makes
sense when one considers the Administrative Procedure Act itself,
which tells courts to use one standard in reviewing formal
regulations--are they “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law?,” 5 U.S.C.
� 706(2)(A), see Motor Vehicle Manufacturers Association of
15 This is the consensus view in nontax fields. See
Cunningham & Repetti, “Textualism and Tax Shelters,” 24 Va. Tax
Rev. 1, 43-45 (2004).
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