Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron
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Deference Running Riot: Separating Interpretation and
Lawmaking Under Chevron
MICHAEL HERZ*
The Supreme Court's decision in Chevron U.S.A. Inc. v. NRDC' is
only eight years old, yet it has become perhaps the central case of mod-
ern administrative law. It is cited with extraordinary frequency,' seems
actually to be affecting lower court decisions3 (perhaps too much so),
and has provoked intense debate over its meaning and correctness.
Chevron receives so much attention because it implicates the basic
problems concerning the institutional roles of the different players in
the administrative state. It is the decision in which the different ages of
administrative law meet; the quasi-constitutional, structural issues that
preoccupied early administrative law appear in the context of the
Associate Professor, Benjamin N. Cardozo School of Law.
1. 467 U.S. 837 (1984).
2. A mid-January 1992 Lexis search of Shepard's Citations shows over 2000 cita-
tions to Chevron in the federal courts.
3. Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical
Study of Federal Administrative Law, 1990 DUKE L.J. 984, 1028-43, 1058-59. Chev-
ron's effect on the Supreme Court has been inconsistent. Although the Court has taken
Chevron seriously in occasional cases, overall it has shown no greater acceptance of
agency interpretations than it had prior to that decision. Thomas W. Merrill, Judicial
Deference to Executive Precedent, 101 YALE L.J. 969, 980-93 (1992).
4. The large and growing literature on Chevron falls into two basic camps: those
who read it broadly and are pleased by its overall message of deference, and those who
read it narrowly and are troubled by that message. The former includes, among others,
Richard J. Pierce, Jr., The Role of Constitutional and Political Theory in Administra-
tive Law, 64 TEX. L. REV. 469, 505-06, 520-24 (1985); Antonin Scalia, Judicial Defer-
ence to Administrative Interpretations of Law, 1989 DUKE L.J. 511; and Kenneth W.
Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. ON REG. 283 (1986). The
latter includes, among others, Cynthia R. Farina, Statutory Interpretation and the
Balance of Power in the Administrative State, 89 COLUM. L. REV. 452 (1989), and
Cass R. Sunstein, Constitutionalism After the New Deal, I01 HARV. L. REV. 421
(1987) [hereinafter Sunstein, Constitutionalism]. Professor Sunstein's condemnation of
Chevron has recently become a good deal less fierce. See Cass R. Sunstein, Law and
Administration after Chevron, 90 COLUM. L. REV. 2071 (1990) [hereinafter Sunstein,
Law and Administration].](ViewImageLocal?handle=hein.journals/adminlj6&div=14&collection=&method=preview&ext=.png&size=3)
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Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron
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