A Softer, Simpler View of Chevron

Administrative and Regulatory Law News, Forthcoming

Columbia Public Law Research Paper No. 14-599

3 Pages Posted: 13 Aug 2018 Last revised: 21 Aug 2018

Date Written: July 25, 2018

Abstract

Justice Kennedy's concurrence in Pereira gives reason to hope that the Court may be finally catching on to the difficulties it created by Chevron's opening language, as distinct from its inherent reasoning. When courts quote language like "precise question" and "permissible" to limit themselves (as Justice Scalia and others unfortunately tended to reinforce by their quotations from the opinion), they stray not only from judicial function but also from the statute (APA) that instructs them how to review, and which strangely the opinion does not mention. But Chevron actually (a) independently found and defined a statutory gap within which the EPA would have authority to act (infra vires) and then (b) reviewed its action for reasonableness. There is no problem reconciling this approach with either proper judicial function or 5 USC 706.6.

Keywords: Chevron, Judicial Review of Agency Action, Statutory Interpretation, Agency Interpretation

Suggested Citation

Strauss, Peter L., A Softer, Simpler View of Chevron (July 25, 2018). Administrative and Regulatory Law News, Forthcoming; Columbia Public Law Research Paper No. 14-599. Available at SSRN: https://ssrn.com/abstract=3219971

Peter L. Strauss (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-2370 (Phone)
212-854-7946 (Fax)

HOME PAGE: http://www.law.columbia.edu/faculty/pstrauss.html

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