Revisiting Congressional Delegation as the Foundation for Chevron

Posted: 30 Apr 2018

See all articles by Mark Seidenfeld

Mark Seidenfeld

Florida State University College of Law

Date Written: April 25, 2018

Abstract

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

Seidenfeld, Mark, Revisiting Congressional Delegation as the Foundation for Chevron (April 25, 2018). Supreme Court Economic Review, Forthcoming, FSU College of Law, Public Law Research Paper No. 877, Available at SSRN: https://ssrn.com/abstract=3168701

Mark Seidenfeld (Contact Author)

Florida State University College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-644-3059 (Phone)
850-644-5487 (Fax)

HOME PAGE: http://www.law.fsu.edu/faculty/mseidenfeld.html

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
286
PlumX Metrics