Legislative Efforts to Overturn Chevron

by Andrew Hessick — Saturday, Mar. 19, 2016@andyhessick

Chevron deference is a central feature of administrative law. But criticism of the doctrine has grown recently. One prominent example comes from Justice Thomas’s concurrence last year in Michigan v. EPA, which argued that Chevron deference is inconsistent with the Constitution. Although other justices have said that agencies have grown too powerful, none of those justices joined Justice Thomas’s concurrence.

Last Thursday, various members of Congress took up Justice Thomas’s torch by introducing bills in both the House and the Senate to overturn Chevron. Called the Separation of Powers Restoration Act, the bills would require courts to review all questions of administrative law de novo—thereby abolishing not only Chevron but also Auer deference. The press release issued by Senator Hatch, who cosponsored the bill, can be found here.

If we are to do away with Chevron, a legislative approach seems more appropriate than a judicial one. The theory why courts defer under Chevron is that Congress delegated interpretive authority to the agencies. Despite Justice Thomas’s concurrence, most arguments against Chevron rest on the ground that the doctrine is a bad idea, not that the Constitution forbids it. If Congress’s delegation to agencies is undesirable, Congress should be the one to fix it. A legislative approach would also avoid the constitutional question.

Overturning Chevron would obviously be a big deal, but the effect may be less than one might expect. Judicial deference to agency interpretations is deeply entrenched. It substantially predates Chevron. How an agency statute is interpreted can have significant policy implications, and agencies are the policy experts. If Chevron deference were abolished, many judges would likely find other ways to defer to agencies. For example, nothing in the bill prohibits Skidmore deference, and it would be unsurprising for courts to strengthen Skidmore if Chevron was no longer available.

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