Chevron Doctrine Research Articles

Science in a shifting policy system.

In June, the US Supreme Court overturned a 40-yearold legal principle known as the Chevron doctrine, which deferred to federal agencies on how regulations are interpreted in legal cases when the legislation enacted by Congress is unclear. Striking a blow against this precedent, Supreme Court Chief Justice John Roberts indicated that Chevron was "fundamentally misguided" and that only the nation's courts have the prerogative to interpret the laws they administer. Judges across the United States now anticipate an onslaught of litigation seeking to overturn federal regulatory actions, and many of these lawsuits will turn on scientific evidence that guided those actions. Instead of deferring to the scientific and technical expertise of federal agencies, courts must now independently review the scientific record behind a challenged regulation for its persuasiveness, along with scientific findings produced by the litigating parties. It's too early to fully unpack the impact of overturning Chevron, but the scientific community must step forward to support the crafting of clear and evidence-informed legislation, and the use of scientific evidence in the courts.

Supreme Court Strikes Down the Chevron Doctrine: Why Health Care Providers Need to Care.

The Supreme Court's creation of the "Chevron deference" or "Chevron doctrine" (Chevron) is arguably one of the most significant in American administrative law-fundamentally changing how the federal agency apparatus operates. Like many legal doctrines, it was largely unknown to the public until the Supreme Court's recent surprise overturning of Chevron. Now, it is making national headlines, appearing on many social media platforms, and reaching non-lawyers and everyday Americans. To participate in the ongoing debate surrounding Chevron within the press, media, and possibly your own colleagues, it is essential to understand the basic facts and principles regarding this monumental Supreme Court ruling. This article will delve into Chevron's 40-year influence on federal agencies, its recent overturning, and the profound impact it will have on the health care industry.

What Chevron doctrine's rejection by Supreme Court could mean for SUD treatment

What Chevron doctrine's rejection by Supreme Court could mean for SUD treatment

CONSTITUTIONAL AND LEGAL CHALLENGES IN THE ADMINISTRATIVE STATE

AbstractFollowing the Roosevelt administration’s implementation of New Deal programs in the 1930s, the federal courts began to interpret the Constitution in a way that accommodated the rise of the “administrative state,” and bureaucratic policymaking continues to persist as a central feature of American government today. This essay submits, however, that the three pillars supporting the administrative state—the congressional delegation of Article I powers to the executive branch, the combination of powers within individual administrative entities, and the insulation of administrators from political control—might be reconsidered by the courts in the near future. After showing that the constitutionality of the administrative state has come under recent judicial scrutiny, the essay turns to the administrative law principle of deference, and argues that a reassessment of the Chevron doctrine seems imminent. Finally, the essay examines federal courts’ heavy use of “hard look” review as a means of curtailing agency discretion during recent administrations, and concludes that this judicial practice stands in uneasy tension with republican principles.

Litigating the Bump Stock Ban

In 2018, ATF promulgated a regulation that banned bump stocks, a mechanical attachment for semiautomatic rifles that simulates the continuous, rapid-repeat firing of a fully automatic firearm or machinegun. Litigation challenging the rule commenced immediately, and two of the cases have reached the federal circuit courts, though the cases have received little academic attention. A striking feature of the bump stock litigation is that it has not centered around Second Amendment rights, though the rule constitutes a significant regulation of firearms, as hundreds of thousands of bump stocks are (or were) in circulation. Instead, the main cases have focused on important but unsettled issues in administrative law. The bump stock cases will create precedent on the applicability of Chevron deference to agency interpretations of statutory terms, especially for the doctrines of Chevron waiver by the government, whether Chevron should apply to regulations that pose potential criminal sanctions for violators, and the murky distinction between “purely” interpretive rules and legislative rules that are both interpretive and have the force of law. Thus, apart from the rule being the first new federal restriction on firearm ownership in many years, the litigation surrounding the rule could change the trajectory of the Chevron doctrine in federal courts. This Article will provide the first in-depth study and academic analysis of these issues through the lens of the D.C. Circuit’s decision in the bump stock litigation, and will argue that this court, along with the Tenth Circuit on a parallel case, have reached the correct conclusions on the proper parameters of Chevron deference.

The federal court of accounts and Chevron doctrine: a critical analysis of the court’s performance in the bid of saturn area

The federal court of accounts and Chevron doctrine: a critical analysis of the court’s performance in the bid of saturn area

Chevron and the Attorney General's Certification Power

Congress has delegated power to the Attorney General to execute the nation’s immigration laws, adjudicate individual noncitizens’ cases, and fill interpretive gaps in the statute. The Attorney General has in turn delegated this authority, by regulation, to the Board of Immigration Appeals (BIA). Most BIA decisions are administratively final, and noncitizens appeal unfavorable decisions directly to federal courts of appeals. In a small but growing number of cases, however, the Attorney General will step in to decide a case himself de novo after the BIA has ruled. This power of intervention and decision, sometimes known as the “referral and review” power or “certification” power, has drawn some praise for being an efficient use of the broad power afforded to the executive branch in the immigration context, but more often has sustained criticism for potential abuse. In this Note, I analyze this certification power through the lens of Chevron. In particular, I argue that Chevron deference to the BIA is appropriate because it serves the values of the Chevron doctrine—expertise, procedural regularity, and public accountability—but that Chevron deference to the Attorney General’s certified opinions is inappropriate. Courts have a responsibility under Step Zero not to defer to an interpretation of law unless its issuance adheres sufficiently to fundamental tenets of administrative law. Certified opinions are insufficient on all counts. Deference to the Attorney General’s interpretations of law issued in this manner serves none of the values of the Chevron doctrine.

'Major Questions' Moderation

The Chevron doctrine instructs federal courts to afford deference to reasonable agency interpretations of ambiguous authorizing statutes. Yet in select instances, courts have deviated from Chevron’s command. One of the more confounding deviations is found in cases involving “major questions.” Under this burgeoning doctrine, courts have appropriated what would appear to be typical deference cases, on the basis of the claimed political or economic exceptionality of the stakes. This “major questions exception” is at the center of ongoing debates about the future of Chevron deference and administrative governance more broadly. In this Article, I appraise the major questions doctrine by way of comparison to two other doctrines under which federal courts deviate from convention, and assume principal decision-making authority in light of political or economic concerns. The first arises from a set of cases in which an agency interpretation presents a “serious” constitutional question, leading courts to employ the constitutional avoidance canon. The second arises from cases involving state law claims implicating “substantial” federal issues, leading courts to find federal court jurisdiction where it otherwise wouldn’t exist. Both doctrines provide useful comparators, and in examining how they have been applied, we gain valuable insight into the current and future legitimacy of the major questions doctrine. After drawing the comparisons, the Article argues that the “expertise” justification for the constitutional avoidance canon does not extend to the major questions exception. But the “uniformity” justification for the federal court jurisdictional anomaly might justify the major questions exception as well, depending on how it is employed. The Article concludes by presenting a novel proposition for how the major questions doctrine could evolve to promote uniformity concerns. Until we learn more about which direction the doctrine is headed, moderation is the best approach.

Judge Kavanaugh, Lorenzo v. SEC, & the Post-Kennedy Supreme Court

This Article analyzes an upcoming Supreme Court case, Lorenzo v. Securities and Exchange Commission (Lorenzo), and explains why it provides a valuable window into the Court’s future now that Justice Kennedy has retired and his seat has been filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote separately in an extensive dissent. That dissent is quite remarkable. It contains a scathing assessment of securities fraud enforcement and adjudication at the SEC, the majority opinion’s interpretation of deceptive financial conduct under Rule 10b-5, and the SEC’s overall role in the development of federal securities law doctrine. Then-Judge Kavanaugh’s dissent also goes on to identify how the legal deficiencies specific to Lorenzo motivate his broader skepticism towards the constitutional legitimacy of the administrative and regulatory state as a whole, a view that represents his signature contribution as a federal judge. Thus, in Lorenzo, the defining judicial philosophy of the newest Supreme Court Justice is on full display. More broadly, this Article demonstrates that the deeper import of Lorenzo is not what it reveals about the views of Justice Kavanaugh. Rather, it is the reception those views will meet from the other eight Justices on the Court. In addressing the argument set forth in the Lorenzo dissent, the current members of the Court will be confronting the positions of a peer and colleague. By necessity, they will also signal their openness to being persuaded by Justice Kavanaugh on the issues where he speaks with greatest authority, and can be expected to act as a forceful advocate for his vision of the law on the Court. Lorenzo can therefore be seen as a bellwether for Justice Kavanaugh’s influence as a judicial entrepreneur on behalf of his trademark theory of the constitutional separation of powers in administrative law. Most importantly, the case bears directly on the area of administrative law where the stakes are highest of all—the role that Justice Kavanaugh may play in the demise of the Chevron doctrine and the collapse of judicial deference toward the administrative state.

Precedens i amerykańskie prawo administracyjne

In the common law order, precedent is not only a matter of applying law but also of making law. The crucial function of stare decisis is to relieve the appearance of judicial arbitrariness. Precedent also applies in the domain of administrative law in the context of judicial control of administrative policy making. Federal courts treat administrative agencies as having precedent-setting powers comparable to their own, under what is referred to as the Chevron doctrine. This doctrine determines the scope of judicial control of the decisional process performed by an administrative agency, particularly when the court is called upon to enforce a limitation to the administrative discretion delegated by the agency’s governing statute.

Both Sides of the Rock: Justice Gorsuch and the Seminole Rock Deference Doctrine

Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case. Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the months leading up to his confirmation hearing, legal scholars pored over his opinions while he was a judge on the U.S. Court of Appeals for the Tenth Circuit, and they had already unearthed his discomfort with the Chevron doctrine. Similarly, through an analysis of his originalism ideology and textualist approach to judicial decision-making, they have attempted to predict how Justice Gorsuch will decide future cases in other important areas of the law. To date, however, Justice Gorsuch’s view on the Seminole Rock deference doctrine has gone unexamined by scholars. Known as Chevron’s “doctrinal cousin,” the Seminole Rock doctrine directs federal courts to defer to an administrative agency’s interpretation of its own regulation unless such interpretation “is plainly erroneous or inconsistent with the regulation.” Especially given the profound practical importance of the doctrine in our administrative state and the Court’s recent interest in it, an assessment of Justice Gorsuch’s view is not merely academic. This essay provides that assessment. First, the essay examines the Seminole Rock deference doctrine and explores the Court’s recent interest in the doctrine. Part II analyzes Justice Gorsuch’s likely view on the Seminole Rock doctrine by examining key Tenth Circuit opinions that will influence his view on Seminole Rock while on the Supreme Court. The essay concludes that although Justice Gorsusch would likely be very skeptical of Seminole Rock, he should ultimately choose to retain the doctrine provided that the Court continues to provide safeguards that would mitigate or even mute any perceived over-reach that the application of Seminole Rock allows in our administrative state.

Whistling Loud and Clear: Applying Chevron to Subsection 21F of Dodd-Frank

On June 26th, 2017 the Supreme Court granted certiorari in Digital Realty Trust, Inc. v. Somers. This is not a freedom of religion case, nor is it an equal protection problem, nor is it any other high profile issue one would expect to see covered by major media outlets. This case is about securities law. Specifically, it is about whether Dodd-Frank’s anti retaliation protections for whistleblowers extend to those who do not fall within the statutory definition of “whistleblower.” Dodd–Frank defines a “whistleblower” as a person or persons who report alleged violations of the securities laws to the SEC. A subsection of Dodd-Frank’s anti retaliation provisions prohibits an employer from taking retaliatory action against a for making reports which are required or protected under Sarbanes-Oxley. The problem arises from the fact that, under Sarbanes-Oxley, employees receive anti retaliation protections for reporting misconduct to a variety of entities, and not just to the SEC. The SEC has promulgated an interpretive rule stating that, despite Dodd-Frank’s express definition of “whistleblower,” the statute’s protections extend to those who only make Sarbanes-Oxley protected reports in addition to those who fall under the statutory definition. One would rightfully presume that this is a classic setup for the Chevron doctrine to determine whether the SEC’s interpretive rule warrants deference. However, not all of the Circuit Courts of Appeals actually applied Chevron. The Fifth, Second, and Ninth Circuits have all addressed the issue, and with widely varying results. The Fifth Circuit applied Chevron, found no ambiguity in the statute, and rejected the SEC’s interpretive rule. The Second Circuit’s Chevron analysis reached a different result, affording deference to the SEC and creating the circuit split. However, the Second Circuit’s analysis utilized the Supreme Court’s interpretive method from King v. Burwell. The Ninth Circuit’s analysis did not use Chevron at all, and expressly relied entirely on King to conclude that, despite Dodd-Frank’s express statutory definition, the term “whistleblower” unambiguously has a different meaning in Dodd-Frank’s anti retaliation context. On February 21, 2018, the Court issued its decision in the Somers case, concluding that the SEC's interpretive rule should receive no Chevron deference, and that the plain statutory definition of whistleblower should apply. The Court did not, however, address the Second or Ninth Circuits' use of King v. Burwell, and the jurisprudential implications of such an approach. This Note reveals these courts' reliance on King, and discusses the potential implications of leaving this interpretive approach unaddressed.

An 'America First' Presidency, International Rule of Law, and the Charming Betsy Doctrine

In the 1803 The Schooner Charming Betsy case, Chief Justice Marshall announced a canon of interpretation that “an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains.” The Charming Betsy canon has become as venerable as its name is felicitous: as recently as 1988 the Supreme Court noted that the doctrine “has for so long been applied by this Court that it is beyond debate.” But the explosion of international law since 1945 – in human rights, environmental law, commerce, family law, etc. -- means that the interpretative ‘footprint’ of the Charming Betsy doctrine is far greater than ever. Combine this reality with a President who has publicly questioned, criticized, and attacked the post-1945 international order more than any major American political leader in modern times. Is the Charming Betsy doctrine still viable and, if so, why? This Article proposes that the canon can be justified, not just by Congressional intent or separation-of-powers, but by our desire to promote ‘rule of law’ globally. Based on this justification for the canon, the Article reasons that it should be applied more vigorously in relation to legal norms established by treaty than in relation to customary international law. The Article also proposes a nuanced relationship between the Charming Betsy canon and another key interpretative tool of American courts, the Chevron doctrine. Finally, the Article explores whether and how Charming Betsy should be brought to bear in trade disputes where Congress has crafted special rules for recognition and implementation of WTO decisions.

Net Neutrality and the FCC’s 2015 Open Internet Order

This note analyzes the 2015 Open Internet Order by contextualizing the development of network neutrality jurisprudence and predicts that the Open Internet Order would withstand judicial scrutiny if challenged under the Administrative Procedure Act, specifically with respect to its conformance to the Chevron Doctrine and the arbitrary and capricious standard.

Chevron and the Reasonable Legislator

This Essay uses the Court's shifting doctrines of judicial deference to agency interpretations of law to examine larger questions about the Legal Process approach to interpretation. Since the New Deal, the Court has adopted several distinctive deference regimes. First, the Hearst-Packard framework predicated the availability of judicial deference on a nonexclusive, multifactor test that asked, in effect, when it made sense, under all of the circumstances, to assume that Congress would want a court to defer. Second, the Chevron doctrine adopted a more categorical approach that instructed courts generally to defer to an agency's interpretation of a statute the agency administered. Third, the Mead doctrine, which is the Court's current approach, takes the intermediate position. Mead gives Chevron deference to agency interpretations announced through notice-and-comment rulemaking or formal adjudication. However, Mead also leaves open the possibility that other, unspecified factors might disclose a legislative intention to delegate interpretive lawmaking power to an agency outside those safe harbors. This Essay argues that all of these seemingly diverse approaches reflect a common foundation. They all grow out of the methodology of Legal Process School, which directs judges (a) to presume that legislature consists of persons pursuing reasonable purposes reasonably and (b) to read statutes accordingly. In determining appropriate deference frameworks, the Justices have almost never looked into the original meaning (if any) of the judicial review provisions of the Administrative Procedure Act (APA). Nor have they explored the background legal expectations (if any) against which those provisions were enacted. Rather, virtually every Justice to address the question has asked, in effect, what deference framework a hypothetical reasonable legislator might prefer. Whatever else, this phenomenon tells us that Legal Process reasoning continues to exert a hold on the broader legal imagination—even, on occasion, that of the Court's textualists.

Chevron and Legislative History

The Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. presupposes that when Congress leaves indeterminacy in an organic act, that indeterminacy reflects an implicit delegation of power to the agency to fill in the details of statutory meaning. Accordingly, a reviewing court must accept the agency's interpretation if reasonable. At its threshold the Chevron test requires the reviewing court to use the traditional of statutory to determine if Congress expressed a clear intention concerning the interpretive question or, by virtue of indeterminacy, left the question for agency resolution. In the era in which it decided Chevron, the Court felt free to use legislative history to help determine whether Congress had directly spoken to the question at issue in the case. In the years since Chevron, the Court's understanding of the traditional tools of statutory interpretation has changed. Contrary to its practice at the time of Chevron, the Court has made it flatly impermissible for interpreters to rely on legislative history in a way that contradicts the text of the statute. This Article argues that the Court's new approach to legislative history precludes the Court's use of that tool of construction to resolve indeterminacy under the Chevron doctrine. If as Chevron suggests, an administrative statute's indeterminacy presumptively reflects a legislative intention to delegate broad policy-making discretion to the responsible agency, then the reviewing court's use of legislative history to narrow that discretion contradicts the implemental design of the statute by narrowing the delegation effectuated by the text.

Toward a Context-Specific Chevron Deference

With Justice Scalia’s passing, the Supreme Court is unlikely to consider overturning the administrative law doctrines affording deference to agency statutory interpretations (Chevron deference) or agency regulatory interpretations (Auer deference). Without Justice Scalia on the Court, however, a different kind of narrowing becomes more likely. The Court may well embrace Chief Justice Roberts’ context-specific Chevron doctrine, as articulated in his dissent in City of Arlington and his opinion for the Court in King v. Burwell. This Essay, which is part of a symposium on the future of the administrative state, explores the Chief Justice’s more-limited approach to Chevron deference and details how recent empirical studies of congressional drafters and agency rule drafters may well provide some support for a context-specific Chevron doctrine (as well as King’s major questions doctrine). Although the wisdom of such a reform lies outside the scope of this Essay, litigants and scholars should pay more attention to the Chief Justice’s dissent in City of Arlington as it may well soon become the law of the land.

Revisiting Congressional Delegation of Interpretive Primacy as the Foundation for Chevron Deference

Although congressional delegation is the rationale used most often to justify the Chevron doctrine, most scholars who have written about this justification have recognized that it is a fiction, alb...

Assessing Court Deference to the Comptroller of the Currency's Regulations: Incidental Powers of Banks and Blackfeet National Bank

In this article, I analyze the question of incidental powers of national banks, raised in Blackfeet National Bank v. Nelson, but not fully addressed: whether banking powers are limited to those enumerated in Paragraph 24 Seven of the National Bank Act. If not, whether courts usually defer to the Comptroller of the Currency's expansion of these powers. The Eleventh Circuit answered the question in the negative. The court's opinion exposes the deeply uncertain interpretation of incidental powers of banks. The timid but constant departure from the Chevron doctrine has allowed courts to stop the rapid expansion of banking powers by the Comptroller of the Currency. The result would be that the standard for judicial review of the Comptroller of the Currency's regulations is no longer under Chevron rule, but under the defunct Skidmore rule.

The Political Economy of Net Neutrality Regulation

Abstract On February 26, 2015, the Federal Communications Commission (FCC) proposed sweeping new regulation for broadband providers. While regulation is typically driven by a combination of economic and political considerations, this article argues that the FCC’s initiative is long on politics and short on economics. For example, the FCC is not able to identify a non-transitory abuse of market power by broadband providers to justify its actions. There is no evidence of excessive returns being earned by broadband providers and the violations of net neutrality that the Commission can point to, including throttling and blocking of data, are conspicuously few in number. What is more, the FCC has yet to establish that the regulatory oversight it proposes would not stifle more investment than it stimulates. Broadband is an example of a two-sided market in which edge (content) providers represent one side of the market and consumers represent the other side of the market. Just as newspapers impose positive prices on both advertisers and subscribers, it is (quite generally) efficient in two-sided markets for both sides of the market to contribute to the total price. Two-sided markets are characterized by a seesaw principle in which a lower price on one side of the market tends to give rise to a higher price on the other side of the market. Hence, a ban on paid prioritization of traffic delivery over broadband networks essentially requires consumers to pay the full freight. The FCC is therefore in the unenviable position of having to justify a policy to regulate broadband that is distinguished by being both economically inefficient and socially inequitable. While the courts are disposed to give deference to expert federal agencies under the Chevron Doctrine, the lack of economic foundation to justify broadband regulation promises to make this tough sledding for the FCC. The strategy on the part of the broadband providers will be to run out the clock with litigation in the hope that the political winds shift in their favor post 2016.