Doubts about Deference: Chevron USA v. Natural Resources Defence Council
(2019) 32 Canadian Journal of Administrative Law & Practice 137, Forthcoming
11 Pages Posted: 4 Jun 2019
Date Written: April 16, 2019
Doubts are gathering about the future of Chevron deference. Under sustained attack from the forces of judicial supremacy on matters of legal interpretation and shorn of one of its strongest defenders (the late Justice Antonin Scalia), Chevron seems to be on the ropes.
I begin by outlining the reasons for doubts about Chevron’s continued vitality. Deference has been criticized by members of the Supreme Court of the United States, state supreme courts and prominent academics.
However, these reasons for doubt should not be overstated, as close scrutiny of recent developments suggests that the most plausible response is a modification, rather than eradication, of Chevron deference. Indeed, critical analysis reveals that the anti-Chevron arguments are surprisingly weak, with their analytical and philosophical rigour generally inversely proportionate to their rhetorical force.
Although predicting the future is always hazardous, I suggest that Chevron's prospects are probably better than is commonly assumed by contemporary commentators.
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