Chenery II and the Development of Federal Administrative Law
16 Pages Posted: 28 Feb 2008 Last revised: 20 Jul 2010
While the Supreme Court's holding in SEC v. Chenery Corp. (Chenery [I])-that agencies have discretion about whether to articulate new policy legislatively or adjudicatively-was not particularly earth shattering, the decision did generate a great deal of scholarly commentary and criticism. Much of this commentary criticized the holding in the case, extolled the virtues of legislative procedures for making rules, and urged courts to encourage administrative agencies to articulate policy legislatively. This Article discusses how a different decision in Chenery II would have affected the administrative process both in look and function. A different holding would have impeded the process significantly. Ultimately, the Article explains why Chenery II is one of the most underrated administrative law decisions of our time.
Keywords: Administrative law, non-legislative rulemaking, adjudication
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