Chevron's Generality Principles
24 Pages Posted: 9 Jan 2016
Date Written: May 29, 2015
Abstract
Chevron is surely one of the most influential doctrines of administrative law. Both in judicial opinions and the scholarly literature, its original insights and subsequent evolution have contributed much to our understanding of the roles of the “four” branches, especially as those roles relate to judicial review. But what does Chevron have to say about the many agency behaviors that are relatively insulated from review? The vast majority of agency policymaking decisions never reach court; for example, they might not be “final” or even “action,” or they may pose standing or ripeness difficulties for would-be petitioners. This Essay argues that Chevron’s impact might reach even these rarely reviewed types of agency behavior. Descriptively, this claim is supported by an analysis of judicial opinions applying Chevron principles to assess agency actions that are not interpretations of organic statutes. Normatively, this claim challenges administrative law to turn its focus to agencies’ unreviewable discretionary space, where a Chevron lens offers important insights about the extent to which agencies can construct their own legitimacy.
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