Volume 107
Issue 6
July '19

Chevron As Law

Written By: Cass R. Sunstein

Abstract

Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. The central objection, connected with longstanding challenges to the legitimacy of the modern regulatory state, is that the decision amounts to an unwarranted transfer of interpretive authority from courts to the Executive Branch. Skeptics think that the transfer is inconsistent with the proposition that it is the province of the Judiciary to say what the law is. To assess such objections, the starting point is simple: whether courts should defer to agency interpretations of law depends largely on legislative instructions. Under the Constitution, Congress has broad power to require courts to defer to agency interpretations (in the face of ambiguity), or to forbid them from doing so. If congressional instructions are the touchstone, and if the Administrative Procedure Act is the guiding text, then it is far from clear that Chevron was wrong when decided, especially if the text of the APA is considered in its context. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.

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