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 )

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

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