Accommodating the Administrative State: The Interrelationship between the Chevron and Nondelegation

39 Pages Posted: 29 Sep 2007  

Patrick M. Garry

University of South Dakota - School of Law

Abstract

Accommodating the Administrative State: The Interrelationship Between the Chevron and Nondelegation Doctrines addresses the interrelationship between two of the more prominent doctrines in administrative law - the nondelegation doctrine and the Chevron doctrine. The article argues that even though the Chevron doctrine has come under intense criticism, it is the logical result of how the nondelegation doctrine has evolved since the late 1930s.

During the constitutional revolution of the New Deal, the Court adopted a deferential model of the nondelegation doctrine, enabling Congress to delegate broad regulatory powers to administrative agencies. This deferential model has become so accepted by the courts that not once since the New Deal has the nondelegation doctrine been used to strike down a congressional enactment. The Chevron doctrine, however, has not been so universally accepted. This doctrine contradicts traditional legal principles by giving to administrative agencies the power to interpret the statutes they administer, hence requiring courts to defer to agencies on questions of law. Many critics argue that Chevron violates separation of powers, since it gives to the executive branch a power traditionally exercised by the judiciary. Contrary to this position, the article argues that Chevron is a necessary and logical extension of the generally accepted nondelegation doctrine. In essence, both doctrines have become necessary to support and sustain the modern administrative state.

Keywords: Administrative law, Administrative state, Nondelegation doctrine, Chevron doctrine, Separation of powers, New Deal

JEL Classification: K20, K23, K29

Suggested Citation

Garry, Patrick M., Accommodating the Administrative State: The Interrelationship between the Chevron and Nondelegation. Arizona State Law Journal, Vol. 38, No. 4, 2006. Available at SSRN: https://ssrn.com/abstract=1017893

Patrick M. Garry (Contact Author)

University of South Dakota - School of Law ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

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