Sidestepping Chevron: Reframing Agency Deference for an Era of Private Governance

Abstract:     
Judicial interpretation of regulatory standards generally relies on the presumption that agencies are politically accountable and democratically “appointed” actors. As a result, courts defer to reasonable agency interpretations of ambiguous statutory language. This presumption, however, is severely outdated. The regulatory arena is replete with the privatization of regulatory decision making, which puts the current approach to agency deference in question. This Note seeks to address the changing nature of the regulatory framework by suggesting a modification of agency deference doctrine that accounts for the increasingly active role played by private parties in public governance. In proposing a new framework for agency deference in cases of private delegation, the Note explores parallels between agency deference and the non-delegation doctrine, addresses the relationship of agency deference to the separation of powers and the fragmentation of the political branches, and seeks to reinstate the judiciary as a primary expositor of statutory meaning in the private delegation context.

NOTE: published version now uploaded

Number of Pages in PDF File: 38

Keywords: Chevron, Deference, Privatization, Regulation, Agency

Accepted Paper Series