Public Law & Legal Theory
The Trump administration’s efforts to weaken regulations are in tension with cost-benefit analysis, which in many cases supports those regulations or otherwise fails to support the administration’s deregulatory objectives. Rather than attempting to justify its actions as a matter of policy preferences, the administration has responded on multiple occasions by using Chevron to interpret statutes so as to evade cost-benefit analysis. The statutory interpretation route, which we call “Chevronizing” around cost-benefit analysis, creates novel challenges for courts, as it pits traditional Chevron deference against a trend in favor of requiring agencies to regulate based on costbenefit analysis as a matter of sound public policy. We evaluate these efforts and conclude that in many of these cases, the Trump administration’s attempts to leverage Chevron deference as a weapon against cost-benefit analysis (and sensible policymaking) will expose it to significant legal risk. We expect that courts will reject several of these efforts. In the process, the Trump administration’s machinations may have the effect of contorting how future courts apply Chevron deference and how future administrations deploy it.
Jonathan S. Masur & Eric A. Posner, "Chevronizing Around Cost-Benefit Analysis", Public Law and Legal Theory Working Paper Series, No. 735 (2020).