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Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell
Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell
Faculty Scholarship
Part I of this article begins by discussing some fundamental constitutional principles that were raised, sometimes implicitly and indirectly, in the Chenery cases. Those principles point to limits on administrative adjudication that go well beyond those recognized in current doctrine. We do not here seek to push those principles as far as they can go, though we offer no resistance to anyone who wants to trod that path. Instead, we identify and raise those principles to help understand the scope and limits of actual doctrine. Our modest claims here are that constitutional concerns about at least some classes of agency …
Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell
Against The Chenery Ii "Doctrine", Gary S. Lawson, Joseph Postell
Faculty Scholarship
The Supreme Court’s 1947 decision in SEC v. Chenery Corp. (“Chenery II”) is generally taken as blanket authorization for agencies to make law through either adjudication or rulemaking if their organic statutes permit both modes. We think this is an overreading of the doctrine. The decision in Chenery II need not be read so broadly, and there are good reasons to read it more narrowly. The most important reason is that agency lawmaking through adjudication presents serious constitutional concerns involving due process of law and subdelegation of legislative power, at least if the agency action deprives people of life, liberty, …