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 Chevron's interaction with two canons of statutory construction-constitutional avoidance and the related 'federalism canon' that 'Congress does not readily interfere' with states' 'substantial sovereign powers under our constitutional scheme' must be considered. Gregory v. Ashcroft, 501 U.S. 452, 461, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991).


How and even whether to apply these canons during a Chevron analysis has been a matter of debate in both the judiciary and academia. Rapanos v. United States, 547 U.S. 715, 737-38, 126 S. Ct. 2208, 165 L. Ed. 2d 159 (2006) (plurality opinion) (rejecting agency interpretation that would impinge on 'the States' traditional and primary power over land and water use'); id. at 757-58 (Roberts, C.J., concurring) (implying agency interpretation would have been upheld had it been promulgated through notice-and-comment rulemaking); id. at 776-77 (Kennedy, J., concurring in the judgment) (rejecting plurality's 'federalism concerns'); id. at 803 (Stevens, J., dissenting) ('The two canons of construction [federalism and constitutional avoidance] relied on by the plurality . . . fail to overcome the deference owed to the Corps.'); Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 Yale L.J. 64, 118 ...

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