This Article urges a novel structure for marrying statutory construction and Chevron deference into a paradigm best described as contextualism. All too often jurists and scholars describe modern statutory construction as dominated by textualism. Textualism is too simplistic and obscures how invariably courts employ a contextualist analysis when construing language. Contextualism, not textualism, is—and always has been—the paradigm for statutory construction. Focusing on contextualism in lieu of textualism promotes an acute focus on what aids in construction a court is willing to entertain, and the Article illustrates that liberal and conservative judges alike employ a contextual analysis while they may volley over whether that analysis includes a consideration of an act’s legislative history or purpose. Chevron’s concentration on the residual effect of that endeavor, or what happens when those aids are insufficiently instructive to warrant deferring to an agency’s construction, wrested from a cloudy past an awkward articulation of deference. But it also shied away from signaling how the judicial review provisions of the Administrative Procedure Act would mesh with its announced formula.
This Article chronicles this history, exploring why Chevron surfaced as a loadstar, purportedly offering a formula for lawyers and courts to follow. It did so, though, with little apparent appreciation for nuance, or any pretense of resolving what was emerging in the field of statutory construction. The Article follows others in suggesting Chevron’s demise might not be too disruptive, adding why its loss might facilitate an appropriate awareness that statutory construction is an exercise in contextualism, with seemingly little lost if the APA properly administered materializes. If we accept how contextualism better reflects the path of statutory construction, lawyers and judges can be honest as they debate what and why they accept some aids in construction and not others. It also could signal how agency deference is a residual consequence of how we approach statutory construction. When uncertainty persists after whatever aids in construction a court considers, it seems only logical that an agency’s construction ought to be afforded considerable weight, if reasonable. After all, if reasonable it tilts the balance.
Sam Kalen, Refining Statutory Construction: Contextualism & Deference, 21 U.N.H. L. Rev. 261 (2023).