Chevron, De Novo: Delegation, Not Deference

Abstract

Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc. is frequently discussed in general terms without sufficient attention to the specifics of the case, including the relevant statutes, the regulations being reviewed, and the arguments that the parties presented and failed to present. As the Supreme Court now considers whether to “overrule” Chevron, it is imperative to review how the case should have been decided had the parties presented the complete set of statutes governing judicial review. Such a “de novo” look at Chevron would produce the same outcome (sustaining the agency’s regulations) but with radically different reasoning, beginning with a recognition that a reviewing court must “decide” all relevant questions of law.
Yet in deciding all relevant questions of law, reviewing courts must frequently confront, as in Chevron itself, the crucial question of how much delegated power the agency possesses. Reviewing courts should focus on that statutory issue—the extent of delegation—and eschew the pointless project of spinning elaborate judicially-fabricated rules concerning deference to agency legal interpretations. Much of that reorientation from deference to delegation was already accomplished in United States v. Mead.
In the Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce cases, the Court should complete the reorientation, disavow the analysis in Chevron, and determine de novo the amount of power delegated to the agency. That approach (i) respects the varied agency delegations authorized by Congress; (ii) adheres to the Administrative Procedure Act’s comprehensive framework for judicial review; and (iii) requires the outcomes in the Loper Bright and Relentless cases to be controlled by the unusually narrow delegation of agency power in the relevant statutes.

Keywords: administrative law, deference, delegation, Chevron doctrine, Loper Bright, Relentless