Digital Commons Network^™

Revisiting Congresssional Delegation Of Interpretative Primacy As The Foundation For Chevron Defense, Mark Seidenfeld

Scholarly Publications

Although congressional delegation is the rationale used most often to justify the Chevron doctrine, most scholars who have written about this justification have recognized that it is a fiction, albeit, they claim, a useful one. In “Chevron’s Foundation,” I proposed an alternative foundation for the Chevron doctrine—a judicial self-limitation justification for Chevron deference—based on an implicit understanding of Article III that courts should not resolve cases by making policy choices where alternative means for deciding these cases exists. In this essay, I first revisit my original critique of the delegation rationale and explicitly respond to the arguments …