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Full-Text Articles in Law
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, …
The Ghosts Of Chevron Present And Future, Gary S. Lawson
The Ghosts Of Chevron Present And Future, Gary S. Lawson
Faculty Scholarship
In the October 2021 term, the Supreme Court decided six cases involving federal agency interpretations of statutes, at least five of which seemingly implicated the Chevron doctrine and several of which explicitly turned on applications of Chevron in the lower courts. But while the Chevron doctrine has dominated federal administrative law for nearly four decades, not a single majority opinion during the term even cited Chevron. Three of those cases formalized the so-called “major questions” doctrine, which functions essentially as an anti-Chevron doctrine by requiring clear congressional statements of authority to justify agency action on matters of great legal and …
Loper Bright And The Future Of Chevron Deference, Jack M. Beermann
Loper Bright And The Future Of Chevron Deference, Jack M. Beermann
Faculty Scholarship
The question presented in Loper Bright Industries v. Raimondo1 is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,2 indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.3 …
The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann
The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann
Faculty Scholarship
The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …
Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard
Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard
Faculty Scholarship
The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.