John F. Duffy (University of Virginia School of Law) has posted CHEVRON, DE NOVO: DELEGATION, NOT DEFERENCE on SSRN. Here is the abstract:
Chevron v. NRDC is frequently discussed in general terms for the deference doctrine originating in the opinion but far less frequently analyzed in terms of the specifics of the case, with attention to the relevant statutes, the regulations being reviewed, the arguments that the parties presented, and the arguments they failed to present. As the Supreme Court now considers whether to “overrule” the case, it is highly important to consider how the case should properly be analyzed if the parties had presented to the Court the complete set of statutes governing judicial review. Such a “de novo” look at Chevron would produce the same outcome (a sustaining of the legality of the agency’s regulations) but with radically different reasoning, beginning with a recognition that a reviewing court must “decide” all relevant questions of law, including statutory questions. Yet in deciding all relevant questions of law, reviewing courts must frequently confront, as in Chevron itself, the crucial question of how much delegated power the agency possesses. Reviewing courts should focus attention on that statutory issue—the extent of delegation—and should eschew the pointless project of spinning ever more elaborate judicially-fabricated rules for granting and denying deference to agency legal interpretations. Much of that reorientation from deference to delegation was already accomplished in United States v. Mead. In the pending Loper Bright v. Raimondo and Relentless v. Department of Commerce cases, the Court should complete the reorientation, disavow the analysis in Chevron, read the relevant statutes de novo, and determine without deference to the agency the amount of power delegated to the agency. That approach has many benefits, including that it would (i) provide an appropriate, rigorous, and broadly applicable approach for addressing the varied agency delegations authorized by Congress; (ii) respect the Administrative Procedure Act’s comprehensive framework governing judicial review; and (iii) help to decide the Loper Bright and Relentless cases by forcing courts to focus on the unusual and narrow delegation of power in the relevant statute.
Highly recommended.
