Richard W. Murphy (Texas Tech University School of Law) has posted Democracy, Chevron Deference, and Major Questions Anti-Deference on SSRN. Here is the abstract:
In 1984, the Supreme Court invoked democratic values to justify Chevron deference, now dead at the age of 40. In 2022, the Supreme Court invoked democratic values in West v. Virginia v. EPA to justify anti-deference. It seems that, at least for some period of time, democracy demanded both deference and anti-deference. Or maybe not. This Essay makes the case that the democracy-talk of Chevron and West Virginia was implausible, misleading, and may have helped cause the law governing judicial review of agency statutory interpretations to evolve in needlessly confusing and controversial ways.
Recommended.
