Implementing Brand X : What Counts as a Step One Holding?

This Note hopes to help the implementation of Brand X. Part I reviews the case within the context of Chevron. Part II elaborates the two problems that courts face when applying Brand X. Then, Part III suggests three tests that courts could use to identify Step One holdings (collapsing the two problems into one inquiry) and examines the support for each test in the Brand X opinion. Next, Part IV surveys how courts and commentators have defined the holding-dicta distinction. Part V then explores the policy interests that will be affected by how courts implement Brand X, focusing on decision costs, accurate interpretation, and the tension between flexibility and stability. Part VI concludes by suggesting how courts can best implement Brand X. This Note argues that courts will best implement Brand X by treating prior judicial interpretations as Step One holdings only when the prior court needed to find the statute clear in order to reach the result of the case. The only exception to this rule should be for post-Brand X Supreme Court decisions when the Court explicitly designates its interpretation as a Step One holding. Requiring necessity is the best approach for several reasons: First, courts will most accurately decide whether a statute is ambiguous when the case requires that decision. Second, fears of unwise agency revision of decades-old precedents are valid, but the prophylactic ossification of regulatory law is not the prudent remedy. The political process and judicial review of agency decisionmaking can prevent unreasonable agency action on a case-by-case basis. Third, the rule best fits with the most common judicial definitions of holdings. Fourth, the decision costs of the rule are low. The post-Brand X Supreme Court should be exempt from this rule because of the Court's limited resources; requiring the Court to take a second case to finalize an interpretation a majority believes to be the only reasonable one is wasteful