The Constitutional Case for Chevron Deference
58 Pages Posted: 20 Feb 2018 Last revised: 8 May 2018
Date Written: 2018
Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Article shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An interpretation that concludes that a statute delegates power to an executive agency is still an interpretation. The power implicitly delegated to an agency by an ambiguous statute is not the power to interpret the statute, but the power to make a policy choice within the limits set by the possible meanings of the statute.
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