Beyond Marbury: The Executive's Power to Say What the Law is

37 Pages Posted: 2 Nov 2005

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)


Under Marbury v. Madison, it is emphatically the province and duty of the judicial department to say what the law is. But as a matter of actual practice, statements about what the law is are often made by the executive department, not the judiciary. In the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron v. Natural Resources Defense Council, the most-cited case in modern public law. Chevron reflects a salutary appreciation of the fact that the executive is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often depends. But the theory that underlies Chevron remains poorly understood, and in the last two decades, significant efforts have been made to limit the executive's interpretive authority. In general, these efforts should be resisted. The principal qualification involves certain sensitive issues, most importantly those involving constitutional rights. When such matters are involved, Congress should be required to speak unambiguously; executive interpretation of statutory ambiguities is not sufficient.

Keywords: Marbury v. Madison, law, judiciary, Supreme Court

JEL Classification: H00, K00

Suggested Citation

Sunstein, Cass R., Beyond Marbury: The Executive's Power to Say What the Law is. Yale Law Journal, Forthcoming, AEI-Brookings Joint Center Working Paper No. 05-21, U Chicago Law & Economics, Olin Working Paper No. 268, Available at SSRN:

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics