Volume 19
Issue
2
Date
2021

A Hail Mary for the Administrative State: An Originalist Defense of Chevron Deference

by Rachel Scholz-Bright

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., established the rule that courts should defer to executive agencies’ reasonable interpretations of a statute, if that statute is genuinely ambiguous. Chevron has sparked vigorous debate about the propriety and scope of executive power, legislative delegation, and judicial review. Most recently, Chevron has been one focus of originalist pushback against the administrative state, and in response, the decision has largely been defended on non-originalist grounds. This note argues that Chevron is in fact consistent with originalist understandings of the Constitution and with early-republic judicial practices. First, Chevron is consistent with traditional understandings of the separation of powers and the extent of each branch’s powers. Second, the principles underlying both mandamus and the canons of construction that counsel deference to the executive each support Chevron’s deferential approach to discretionary executive decisions. Finally, Chevron can also be defended by adopting an originalist Thayerian approach. This approach uses originalist methods to answer constitutional questions that have determinable answers, while using a deferential, Thayerian approach to answer constitutional questions based in areas of unresolvable ambiguity.

Keep Reading A Hail Mary for the Administrative State: An Originalist Defense of Chevron Deference

Subscribe to GJLPP