Loper Bright and the Future of Chevron Deference

William & Mary Law Review Online, Forthcoming

26 Pages Posted: 25 Oct 2023 Last revised: 7 Dec 2023

Date Written: September 26, 2023

Abstract

This essay proposes that the Court overrule the Chevron two-step standard of review of agency statutory construction and replace it by reviving deference under the factors announced in the Skidmore case with a twist that preserves Chevron’s greatest virtue, agency freedom to alter its statutory interpretations so long as the agency remains within the zone of reasonable construction. This essay also proposes that the Court clarify the boundary between cases involving statutory construction and cases involving agency policy decisions that are reviewed under the arbitrary and capricious standard articulated in cases such as Motor Vehicles and Overton Park. On this matter, this essay proposes that this boundary be drawn based on a straightforward and in my view simple inquiry into whether the case centers on the correct understanding of a statute (where the Skidmore factors would apply) or the policy implications of the agency’s actions (where arbitrary, capricious review would apply). In my view, this understanding is easier for courts to apply, is more consistent with the structure established by the Administrative Procedure Act (APA) and would focus judicial review on the issues that ought to matter to the parties and the courts.

Keywords: Chevron, Judicial Review, Supreme Court

JEL Classification: K23

Suggested Citation

Beermann, Jack Michael, Loper Bright and the Future of Chevron Deference (September 26, 2023). William & Mary Law Review Online, Forthcoming , Available at SSRN: https://ssrn.com/abstract=4584525

Jack Michael Beermann (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-2577 (Phone)
617-353-3110 (Fax)

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