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Codifying Chevmore, Kent H. Barnett

Scholarly Works

This Article considers the significance and promise of Congress’s unprecedented codification of the well-known Chevron and Skidmore judicial-deference doctrines (to which I refer collectively as “Chevmore”). Congress did so in the Dodd-Frank Act by instructing courts to apply the Skidmore deference factors when reviewing certain agency-preemption decisions and by referring to Chevron throughout.

This codification is meaningful because it informs the delegation theory that undergirds Chevmore (i.e., that Congress intends to delegate interpretive primacy over statutory interpretation to agencies under Chevron or courts under Skidmore). Scholars and at least three Supreme Court Justices have decried the judicial inquiry into congressional …

A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan

Scholarly Works

Broad executive action has been the Obama Administration’s signature contribution to American immigration policy, setting off a furious debate about whether the President has acted outside his constitutional powers. But the legal debate about the scope of the President’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies, and thus has not focused on those areas where he has taken executive discretion into uncharted territory. This essay aims to add new focus to the debate about Pres. Obama’s executive actions by defining five different types of presidential discretion: Congressionally-authorized discretion, non-enforcement discretion, …