Deconstructing the Administrative State: Chevron Debates and the Transformation of Constitutional Politics
87 Pages Posted: 21 Sep 2021 Last revised: 7 Oct 2021
Date Written: May 1, 2021
This Article contrasts Reagan-era conservative support for Chevron U.S.A. v. NRDC with conservative opposition to Chevron deference today. That dramatic shift offers important context for understanding how future attacks on the administrative state will develop.
Newly collected historical evidence shows a sharp pivot after President Obama’s reelection, and conservative opposition to Chevron deference has become stronger ever since. The sudden emergence of anti-Chevron critiques, along with their continued growth during a Republican presidency, suggests that such arguments will increase in power and popularity for many years to come.
Although critiques of Chevron invoke timeless rhetoric about constitutional structure, those critiques began at a very specific moment, and that historical coincidence fuels existing skepticism about such arguments’ substantive merit. This Article analyzes institutional questions surrounding Chevron with deliberate separation from modern politics. Regardless of one’s substantive opinions about President Trump, federal regulation, or administrative deference, this Article identifies extraordinary costs to the legal system of overruling Chevron through mechanisms of constitutional law.
Keywords: administrative law, chevon, administrative deference, administrative history, reagan revolution, deconstructing the administrative state, legal history, federal courts
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