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09/01/2018

T.J. McCarrick: A Textual and Constitutional Foundation for Chevron
Michael Ramsey

T.J. McCarrick (Kirkland & Ellis LLP) has posted In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron (San Diego Law Review, forthcoming) on SSRN.  Here is the abstract:

The bedrock of modern administrative law faces a judicial mutiny. For decades, the Chevron doctrine required federal courts to defer to an agency's reasonable interpretation of an ambiguous statute that it administers. Chevron was premised on the across-the-board- presumption that Congress delegates enforcement discretion to agencies when it legislates ambiguously, and that agencies -- rather than courts -- properly resolve statutory ambiguities in the course of policy administration. In other words, Chevron championed the role of the political branches in creating and executing law. That consensus is under siege. Courts began by chipping away at the background presumption of delegation. But increasingly, judges have declared open season on Chevron writ large, arguing it upsets the proper balance of power between the branches of government. This trend is notable, not for its critique of centralized power in bureaucracies -- that's old hat -- but for its implicit embrace of judicial supremacy. Nearly every skeptic of Chevron genuflects at the altar of Marbury, trumpeting the judiciary's power to "say what the law is." That is a fitting response for jurists laboring to throw off the yoke of a decision long-considered the "counter-Marbury for the administrative state." But does the critique have any purchase? In a word, no. Specifically, this Article argues that Chevron has a remarkable historical, textual, and constitutional pedigree. It argue: (1) Chevron deference -- if not commanded by the Administrative Procedures Act (APA) -- is not inconsistent with the role that statute envisions for courts; (2) Chevron deference is consistent with the framework for judicial review applied by antebellum courts to statutory ambiguities; and (3) properly conceived, Chevron deference is likely commanded by Article II of the Constitution. In short, this Article comes to praise Chevron, not to bury it.