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Chevron Is a Phoenix

Posted by on Wednesday, March 24, 2021 in Essays, Volume 74, Volume 74, Number 2.

Lisa Schultz Bressman & Kevin M. Stack | 74 Vand. L. Rev. 465 (2021) |

Judicial deference to agency interpretations of their own statutes is a foundational principle of the administrative state. It recognizes that Congress has the need and desire to delegate the details of regulatory policy to agencies rather than specify those details or default to judicial determinations. It also recognizes that interpretation under regulatory statutes is intertwined with implementation of those statutes. Prior to the famous decision in Chevron, the Supreme Court had long regarded judicial deference as a foundational principle of administrative law. It grew up with the administrative state alongside other foundational administrative law principles. In Chevron, the Court gave judicial deference a particular articulation and set of express justifications that made the principle seem new and bold—and ultimately set it on a path to become convoluted and vulnerable. But judicial deference is no less a foundational principle because Chevron took on a life of its own. And foundational principles—particularly those that help to maintain balance among the branches—do not simply go away. They change and reappear in the law. The Court can try to kill Chevron, but judicial deference will find its way back to administrative law.

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Lisa Schultz Bressman and Kevin M. Stack