The ‹i›Chevron‹/i› Doctrine : Its Rise and Fall, and the Future of the Administrative State

A leading expert on the administrative state describes the past, present, and future of the immensely consequential--and equally controversial--legal doctrine that has come to define how Congress's laws are applied by the executive branch. The Constitution makes Congress the principal federal lawmaker. But for a variety of reasons, including partisan gridlock, Congress increasingly fails to keep up with the challenges facing our society. Power has inevitably shifted to the executive branch agencies that interpret laws already on the books and to the courts that review the agencies' interpretations. Since the Supreme Court's 1984 decision in Chevron v. Natural Resources Defense Council, this judicial review has been highly deferential: courts must uphold agency interpretations of unclear laws as long as these interpretations are "reasonable." But the Chevron doctrine faces backlash from constitutional scholars and, now, from Supreme Court justices who insist that courts, not administrative agencies, have the authority to say what the law is. Critics of the administrative state also charge that Chevron deference enables unaccountable bureaucratic power. Thomas Merrill reviews the history and immense consequences of the Chevron doctrine and suggests a way forward. Recognizing that Congress cannot help relying on agencies to carry out laws, Merrill rejects the notion of discarding the administrative state. Instead, he focuses on what should be the proper relationship between agencies and courts in interpreting laws, given the strengths and weaknesses of these institutions. Courts are better at enforcing the rule of law and constitutional values; agencies have more policy expertise and receive more public input. And, unlike courts, agencies are subject to at least some political discipline. The best solution, Merrill suggests, is not of the either-or variety. Neither executive agencies nor courts alone should pick up the slack of our increasingly ineffectual legislature. A leading expert on the administrative state describes thepast, present, and future of the immensely consequential-andequally controversial-legal doctrine that has come to define howCongress's laws are applied by the executive branch. TheConstitution makes Congress the principal federal lawmaker. But fora variety of reasons, including partisan gridlock, Congressincreasingly fails to keep up with the challenges facing oursociety. Power has inevitably shifted to the executive branchagencies that interpret laws already on the books and to the courtsthat review the agencies' interpretations. Since the SupremeCourt's 1984 decision in Chevron v. Natural Resources DefenseCouncil, this judicial review has been highly deferential:courts must uphold agency interpretations of unclear laws as longas these interpretations are "reasonable." But the Chevrondoctrine faces backlash from constitutional scholars and, now, fromSupreme Court justices who insist that courts, not administrativeagencies, have the authority to say what the law is. Critics of theadministrative state also charge that Chevron deferenceenables unaccountable bureaucratic power. Thomas Merrill reviewsthe history and immense consequences of the Chevrondoctrine and suggests a way forward. Recognizing that Congresscannot help relying on agencies to carry out laws, Merrill rejectsthe notion of discarding the administrative state. Instead, hefocuses on what should be the proper relationship between agenciesand courts in interpreting laws, given the strengths and weaknessesof these institutions. Courts are better at enforcing the rule oflaw and constitutional values; agencies have more policy expertiseand receive more public input. And, unlike courts, agencies aresubject to at least some political discipline. The best solution,Merrill suggests, is not of the either-or variety. Neitherexecutive agencies nor courts alone should pick up the slack of ourincreasingly ineffectual legislature This book is primarily a work of history about the Chevron doctrine--where it came from, how it spread, the fate of attempts to cabin it, and recent arguments that it should be overruled or significantly rewritten. Before plunging into that history, this chapter seeks to describe, in broad outline, four values that are generally relevant in determining what a regime of judicial review of agency interpretations of law should seek to accomplish. These values are grounded in rough generalizations about how courts and agencies compare in terms of their strengths and weaknesses as institutions "With Congress paralyzed, lawmaking falls to executive agencies and courts that interpret existing statutes. Due to the so-called Chevron doctrine, courts generally defer to agencies. Thomas Merrill examines the immense consequences of the doctrine and the intense backlash, offering a new way to conceptualize the authority of agencies and courts"-- Provided by publisher With Congress paralyzed, lawmaking falls to executive agencies and courts that interpret existing statutes. Due to the so-called __Chevron__ doctrine, courts generally defer to agencies. Thomas Merrill examines the immense consequences of the doctrine and the intense backlash, offering a new way to conceptualize the authority of agencies and courts.