Abandon Chevron and Modernize Stare Decisis for the Administrative State
57 Pages Posted: 8 Nov 2017
Date Written: November 6, 2017
This Article argues for abandonment of the Chevron doctrine but not because, as some breathless critiques insist, it transfers tyrannical power to the executive. Rather, courts should abandon the Chevron doctrine because it has evolved into a mess that, viewed as a means to fine tune the deference dials inside judicial heads, is not worth the confusion it causes.
Chevron should not, however, be abandoned without replacement because it does serve the important function of protecting agencies’ ability to change how they construe their enabling acts over time to reflect new learning. Chevron protects this flexibility indirectly by acknowledging that agencies can, under some circumstances, shift from one reasonable construction to another. Courts should instead achieve this end more directly by adjusting the precedential force of their opinions. More specifically, when a court confronts a choice between following its own precedent construing an agency’s construction of a statute it administers or following the agency’s own new construction, the court should adopt whichever one is better without stare decisis distorting the inquiry. This approach transforms “deference” into a simple and continuing duty on the part of courts to keep an open mind when assessing agencies’ efforts to construe and implement the statutes that they administer. This transformation would not change many outcomes in significant cases, but it would greatly simplify an absurdly complex corner of administrative law.
Keywords: Deference, Chevron, Skidmore, Stare Decisis, Precedent, Brand X
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