Chevron and Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning of the Administrative Procedure Act
46 Pages Posted: 1 Feb 2023 Last revised: 25 Oct 2023
Date Written: January 31, 2023
The Chevron doctrine, which requires courts to defer to an agency’s interpretation of a statute that it administers, is a central component of the administrative state. But in recent years, the doctrine has been strongly criticized for being inconsistent with the original meaning of the Administrative Procedure Act (“APA”).
In a recent article, Cass Sunstein defends Chevron against this charge, arguing that the original meaning evidence is equivocal. Sunstein maintains that one cannot clearly reject Chevron and therefore the Supreme Court should not overturn the case.
In this Article, I criticize Sunstein’s defense of Chevron and argue that Chevron is plainly inconsistent with the APA’s original meaning. Some commentators reject Chevron on the ground that the APA does not allow for agency deference. While I agree with these commentators that this is the best reading of the APA, I also agree with Sunstein that this is not the only possible reading of the statute. But this lack of clarity about the APA does not help Sunstein’s argument. Even if one interprets the APA’s text as Sunstein does, this still does not justify Chevron deference. Instead, it results in deference for mixed questions but no deference for pure questions of law. This interpretation would involve a narrower type of deference that would significantly trim the Chevron doctrine.
The Article then reviews and criticizes a more recent defense of Chevron deference by administrative law scholar Ronald Levin. While Levin presents additional arguments for Chevron deference, I conclude that these arguments are no more successful than Sunstein’s.
Keywords: Administrative Procedure Act, Judicial Review of Legal Questions, Chevron , Original Meaning of the APA, Separation of Powers, constitutional interpretation, administrative law, Administrative Procedure Act, APA, Chevron deference, administrative common law, adminstrative state, APA
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