Chevron's Sliding Scale in Wyeth v. Levine, 129 S. Ct. 1187 (2009)

Abstract

In Wyeth v. Levine the Supreme Court once again failed to reconcile the interpretive presumption against preemption with the sometimes competing Chevron doctrine of deference to agencies' reasonable statutory interpretations. Rather than resolve the issue of which principle should govern where the two principles point toward opposite results, the Court continued its recent practice of applying both principles halfheartedly, carving exceptions, and giving neither its proper weight. This analysis situates Wyeth within the larger framework of the Court's recent preemption decisions in an effort to explain the Court's hesitancy to resolve the conflict. The analysis concludes that the Court, motivated by its strong respect for congressional intent and concern to protect federalism, applies both the presumption against preemption and the Chevron doctrine on a sliding scale. Where congressional intent to preempt is clear and vague only as to scope, the Court is usually quite deferential to agency determinations, but where congressional preemptive intent is unclear, agency views are accorded less weight. The Court's variable approach to deference is defensible as necessary to prevent unauthorized incursion into areas of traditional state sovereignty, but its inherent unpredictability sows confusion among regulated parties, and the need for flexibility prevents the Court from adopting any of the more predictable across-the-board approaches to deference proposed by the Court's critics. A superior approach would combine the Court's concern for federalism with the certainty of a bright-line rule by granting deference to agency views where Congress has spoken via a preemption clause of ambiguous scope and no deference where Congress has remained silent.