A World Without Chevron

Let me complete my set of posts on Chevron by explaining what legal doctrine would look like without Chevron.  Chevron was justified in part based on the view that the prior doctrine was a mess because it left no guidance as to whether deference would be given to an administrative agency in any specific case.  That Chevron has turned into a doctrine with tremendous uncertainty is both ironic and another reason not to like it.

There are two possible doctrines that would replace Chevron.  The first is simply not to confer deference on an agency unless there is a clear indication from Congress that such deference was intended.  Thus, if Congress specifically provided for such deference then the courts should confer it.

An example of this comes from the Fair Labor Standards Act, which exempted “outside salesman” from the overtime provisions of the Act.  Significantly, Congress did not definte the term outside salesman, but delegated authority to the Department of Labor to issue regulations “from time to time” to “define and delimit” the term.  Congress here was clearly allowing the agency to determine the scope of the term.  But in the absent of such an explicit provision one would not infer any deference for the agency.

A second way of replacing Chevron would be to employ a doctrine that was widely but not always employed prior to the case.  Under this doctrine, agencies enjoyed deference as to mixed questions of law involving agency statutes, but not as to pure questions.  This doctrine would not involve excessive uncertainty.  This doctrine might actually be legally authorized if one concluded that it were widely followed and made part of the APA.  That is, when the APA says that courts should decide all questions of law that it somehow incorporated this background understanding.  I am skeptical, but it is possible.

In the end, though, I don’t think there is any original meaning or textual argument for Chevron.  And the doctrine exacerbates the problem of combining legislative and executive power.  The Supreme Court should get rid of it.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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