A Possible Limit on High Court 2005 Agency Deference Ruling

Law360, 2020

6 Pages Posted: 1 Apr 2020

Date Written: March 6, 2020


Justice Thomas has recently argued that the Court's 2005 Brand X decision (that he authored) should be overruled. This short article considers a way that the Brand X doctrine might be limited or cabined if the Court does decide to revisit the precedent. The doctrine provides that a prior judicial precedent interpreting a statute will not prevent a subsequent agency interpretation from receiving Chevron deference unless the precedent finds the statute to be unambiguously contrary to the agency interpretation. This article analyzes a potential limitation briefly suggested by Justice Stevens in his Brand X concurrence: that the doctrine might have limited application when the relevant prior precedent emanates from the Supreme Court rather than a circuit court.

Suggested Citation

Michaels, Andrew C., A Possible Limit on High Court 2005 Agency Deference Ruling (March 6, 2020). Law360, 2020, Available at SSRN: https://ssrn.com/abstract=3550724 or http://dx.doi.org/10.2139/ssrn.3550724

Andrew C. Michaels (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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