Law Commons^™

Not So Juris-Prudent: The Misguided Movement To Abandon Chevron Deference Through The Lens Of Mifepristone And The Attacks On Fda Autonomy, Ella Seltzer

Upper Level Writing Requirement Research Papers

No abstract provided.

The Case For Chevron Deference To Immigration Adjudications, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower—to show that “this case against Chevron has * * * its greatest force when it comes to immigration.”

The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general and …

Chevron As Construction, Lawrence B. Solum, Cass R. Sunstein

Georgetown Law Faculty Publications and Other Works

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. Chevron as construction is supported by powerful arguments; it …

The Case Against Chevron Deference In Immigration Adjudication, Shoba Wadhia, Christopher Walker

Journal Articles

The Duke Law Journal’s fifty-first annual administrative law symposium examines the future of Chevron deference—the command that a reviewing court defer to an agency’s reasonable interpretation of an ambiguous statute the agency administers. In the lead article, Professors Kristin Hickman and Aaron Nielson argue that the Supreme Court should narrow Chevron’s domain to exclude interpretations made via administrative adjudication. Building on their framing, this Article presents an in-depth case study of immigration adjudication and argues that this case against Chevron has perhaps its greatest force when it comes to immigration. That is because much of Chevron’s theory for congressional delegation …

Chevron Abroad, Kent H. Barnett, Lindsey Vinson

Scholarly Works

This Article presents our comparative findings of how courts in five other countries review agency statutory interpretation. These comparisons permit us to understand and participate better in current debates about the increasingly controversial Chevron doctrine in American law, whereby courts defer to reasonable agency interpretations of statutes that an agency administers. Those debates concern, among other things, Chevron 's purported inevitability, functioning and normative propriety. Our inquiry into judicial review in Germany, Italy, the United Kingdom, Canada, and Australia provides useful and unexpected findings. Chevron, contrary to some scholars' views, is not inevitable because only one of these countries has …

Delegation And Time, Jonathan H. Adler, Christopher J. Walker

Faculty Publications

Most concerns about delegation are put in terms of the handover of legislative power to federal agencies and the magnitude of the legislative policy decisions made by such agencies. Likewise, most reform proposals, such as the Congressional Review Act and the proposed REINS Act, address these gap-filling, democratic-deficit concerns. The same is true of the judicially created non-delegation canons, such as the major questions doctrine and other clear-statement rules. This Article addresses a different, under-explored dimension of the delegation problem: the temporal complications of congressional delegation. In other words, broad congressional delegations of authority at one time period become a …

Restoring Chevron's Domain, Jonathan Adler

Faculty Publications

For some three decades, Chevron USA v. Natural Resources Defense Council has stood at the center of administrative law. Today, however, there are doubts about the doctrine’s continued vitality, and perhaps even its ultimate desirability. This brief article, based upon remarks delivered at Missouri Law Review symposium, suggests the scope of Chevron’s domain should be determined by its doctrinal grounding. Specifically, insofar as the Court’s subsequent application and elucidation of Chevron have indicated that the doctrine is predicated on a theory of delegation, courts should only provide such deference when the relevant power has been delegated by Congress. Correspondingly, …

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Publications

No abstract provided.

Chevron At The Roberts Court: Still Failing After All These Years, Jack M. Beermann

Faculty Scholarship

This article looks at how Chevron deference has fared at the Supreme Court since John G. Roberts became Chief Justice. The article looks at Chevron deference at the Roberts Court from three distinct angles. First, the voting records of individual Justices in cases citing Chevron are examined to shed light on the strength of each Justice’s commitment to deference to agency statutory construction. Second, a select sample of opinions citing Chevron are qualitatively examined to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the article looks closely at …

Judge Wald And Justice Scalia Dance The Chevron Two-Step, Linda Jellum

Articles

No abstract provided.

Making Law Out Of Nothing At All: The Origins Of The Chevron Doctrine, Gary S. Lawson, Stephen Kam

Faculty Scholarship

For more than a quarter of a century, federal administrative law has been dominated by the so-called Chevron doctrine, which prescribes judicial deference to many agency interpretations of statutes. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,2 for which the doctrine is named, has become the most cited case in federal administrative law, and indeed in any legal field, 3 and the scholarship on Chevron could fill a small library.4 Love it5 or hate it,6 Chevron virtually defines modern administrative law.

Even after almost thirty years and thousands of recitations, unanswered questions about this Chevron framework abound. Does this …

The Impact Of The Rise And Fall Of Chevron On The Executive's Power To Make And Interpret Law, Linda Jellum

Articles

The Supreme Court's willingness to defer to agency interpretations of ambiguous statutes has vacillated over the past seventy years. The Court's vacillation has dramatically impacted the executive 's power to make and interpret law. This Article examines how the Court augmented then constricted executive lawmaking power and ceded then reclaimed executive interpretive power with a single case and its legal progeny. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. and its aftermath dramatically altered the executive's power to make and interpret law. Prior to Chevron, Congress had the primary responsibility for lawmaking, while agencies made policy choices primarily when …

City Of Arlington V. Fcc: Questioning Agency Authority To Determine The Scope Of Its Own Authority, Jonathan H. Adler

Faculty Publications

In City of Arlington v. FCC the Supreme Court will consider whether courts should defer to an agency’s determination of its own jurisdiction. Although the need for courts to defer to agency interpretations of ambiguous statutory provisions under Chevron v. NRDC is well-established, the Supreme Court has never decided whether so-called Chevron deference should apply to statutory provisions delineating the scope of agency jurisdiction. There are several reasons courts should not confer Chevron deference to agency interpretations of statutes that define or limit an agency’s jurisdiction. First, the conferral of Chevron deference is premised upon the existence of agency jurisdiction. …

The Fight Over "Fighting Regs" And Judicial Deference In Tax Litigation, Leandra Lederman

Articles by Maurer Faculty

The question of how much deference courts should accord agency interpretations of statutes is a high-profile and important issue that affects both rulemaking and case outcomes. What level of deference should courts accord an agency regulation or other rule that an agency has issued opportunistically, during the course of related litigation? This important question has arisen in numerous cases, including the 2011 U.S. Supreme Court decision in Mayo Foundation for Medical Education and Research v. United States, a case involving a Treasury regulation.

To answer the question, the Article analyzes the law on judicial deference to tax authorities generally, as …

The United States Court Of Appeals For Veterans Claims: Has It Mastered Chevron's Step Zero?, Linda Jellum

Articles

No abstract provided.

Heads I Win, Tails You Lose: Reconciling Brown V. Gardner's Presumption That Interpretive Doubt Be Resolved In Veterans' Favor With Chevron, Linda Jellum

Articles

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the United States Supreme Court held that agencies should determine the meaning of ambiguous statutes. But in the veterans law case Brown v. Gardner, the Supreme Court directed lower courts to resolve interpretive doubt in ambiguous statutes in favor of veterans. Which interpretation controls when a statute is ambiguous-the agency's reasonable interpretation or the veteran's interpretation? To date, none of the courts faced with this conflict have resolved this question clearly or definitively; indeed, the United States Court of Appeals for Veterans Claims recently asked the Supreme Court …

Jettisoning Chevron, Linda Jellum

Articles

No abstract provided.

No Two-Stepping In The Laboratories: State Deference Standards And Their Implications For Improving Chevron Doctrine, Michael Pappas

Faculty Scholarship

This article examines the deference standards that the various states apply to agency statutory interpretation and analyzes the implications for the federal Chevron doctrine. First, the article surveys state standards for reviewing agencies' statutory interpretation, finding that none of the state standards exactly follows the federal Chevron test but that state standards fall into one of four categories ranging from "strong deference" to "de novo with deference discouraged." The article then examines four particular state standards in depth, discovering that states tend to use the same methods, tools, and processes for statutory interpretation despite the different announced degrees of deference. …

Reincarnating The 'Major Questions' Exception To Chevron Deference As A Doctrine Of Non-Interference (Or Why Massachusetts V. Epa Got It Wrong), Abigail Moncrieff

Faculty Scholarship

In a pair of cases declaring a major questions exception to Chevron deference, the Supreme Court held that executive agencies may not implement major policy changes without explicit authorization from Congress. But in Massachusetts v. EPA, the Court unceremoniously killed its major questions rule, requiring the EPA to implement one such major policy change. Because the scholarly literature to date has failed to discern a worthy justification for the major questions rule, the academy might be tempted to celebrate the rule's death. This Article, how-ever, argues that the rule ought to be mourned and, indeed, reincarnated. It offers a non-interference …

Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts

Articles

This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …

Chevron's Demise: A Survey Of Chevron From Infancy To Senescence, Linda Jellum

Articles

No abstract provided.

Interpreting Indian Country In State Of Alaska V. Native Village Of Venetie, Kristen A. Carpenter

Publications

According to federal Indian law's canons of construction, statutes enacted for the benefit of American Indians and Alaska Natives must be liberally interpreted in their favor. But a doctrine of statutory interpretation presently challenges certain applications of the Indian canons. Announced by the Supreme Court in Chevron, U.S.A. v. Natural Resources Defense Council, Inc., the doctrine requires that courts defer to administrative agency interpretations of ambiguous language in statutes they are authorized to administer. In instances where agencies construe statutes against Indian interests, Chevron deference and the Indian canons dictate opposite results for a reviewing court. This conflict muddles Indian …