Damonta Morgan (Columbia Law School) has posted Chevron's New Step Zero?: Measuring the Impact of Justice Gorsuch’s 'Pecuniary Interest' Query (Yale Journal on Regulation, Vol. 39, No. 1, 2022) on SSRN. Here is the abstract:
Last November, the Supreme Court heard argument in Becerra v. Empire Health Foundation and American Hospital Association, et. al. v. Becerra, both challenging the Department of Health and Human Services' (HHS) reimbursement rules under the Medicare Act. Lurking in the background of both cases, though, was the question of what the Court should do with Chevron deference. Justice Gorsuch previewed one potential limitation on the doctrine when he asked the Government’s counsel whether Chevron should apply when the government’s interpretation “tends to favor the government’s own pecuniary interests?” Drawing on data from the Court of Appeals in which the courts considered Chevron arguments, this Essay explores the effect that a "pecuniary interest" inquiry would have on the resolution of Chevron cases in the lower courts.
