Revisiting Congressional Delegation as the Foundation for Chevron
Posted: 30 Apr 2018
Date Written: April 25, 2018
In this Essay, I first revisit my original critique of the Supreme Court’s justification for the Chevron doctrine – that the doctrine is justified by implicit delegation of interpretive authority to an agency when Congress authorizes and agency to implement a statute via actions with the force of law. The Essay explicitly respond to the arguments supporting that justification that were published after my prior work on Chevron. Although I think that these arguments muddy the waters regarding congressional delegation by providing evidence that there are at least some cases in which Congress purposely means to grant agencies interpretive primacy, I conclude that this is still unlikely to be true with respect to most statutory ambiguities, and hence that in most cases such delegation is still a fiction. I then proceed to consider how the rejection of congressional intent to delegate interpretive primacy to agencies bears on the judicial developments in the application of Chevron that post-date my prior work.
Keywords: Judicial Review, Chevron Step Two, Legislation, Major Question Exception
Suggested Citation: Suggested Citation