Supreme Court Review

Article Title

Chevron Without Chevron


Chevron v NRDC has a strong claim to being the most important case in all of administrative law. It is now under serious pressure, fueled by some serious questions about the legitimacy of the regulatory state in general. For example, Justice Neil Gorsuch objects that Chevron “[t]ransfer[s] the job of saying what the law is from the judiciary to the executive.” Invoking the massive power of contemporary regulatory agencies, Chief Justice John Roberts seeks ways to confine Chevron’s reach. As he puts it, “The Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities.” Justice Clarence Thomas argues that Chevron is inconsistent with the Constitution. In his view, the decision “wrests from Courts the ultimate interpretative authority to ‘say what the law is,’” and instead “hands it over to the Executive. ”It seems clear that Chevron is entering a period of serious reconsideration. In the fullness of time, it might be seriously qualified or even abandoned. My main topic here is simple: Without the framework established and applied in Chevron, how would Chevron itself have been decided? In a way, that question seems narrow and backward-looking. But it is larger than it seems. Chevron—the case—is representative of the kinds of problems that courts are now addressing and will be addressing for the foreseeable future. An understanding of how Chevron might be decided without Chevron offers some broader lessons about statutory interpretation in the regulatory state. As we will see, that understanding also suggests the perils of overruling Chevron and fortifies the view that administrative law ought to retain it.

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