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. Continue Reading →