The Future of Chevron Deference

Abstract

What is Chevron’s future? This hotly-debated question is among the most significant facing administrative law today. In recent years, some members of the U.S. Supreme Court have expressed skepticism about Chevron, making some advocates reluctant even to claim Chevron deference. It is possible (and perhaps even likely) that the Supreme Court may soon reform this familiar landmark of administrative law doctrine. But what might reform look like?

This short essay — the Foreword to the 2021 Duke Law Journal’s annual symposium on administrative law — explores the future of Chevron. We summarize our own proposal for a path forward, namely, to narrow Chevron’s domain by limiting it primarily or even exclusively to the rulemaking context. We also introduce new ideas from several other leading scholars. We do not have a crystal ball to predict the future, but we believe that the issues and ideas presented in connection with the symposium for which this essay was written merit the Supreme Court’s consideration.

Keywords: administrative law, Chevron, deference, Supreme Court, rulemaking,