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32 J.L. & Pol. 293 (2016-2017)
Chevron Deference: Mend It, Don't End It

handle is hein.journals/jlp32 and id is 307 raw text is: Chevron Deference: Mend It, Don't End It Alan B. Morrison* In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,' the Supreme Court unanimously adopted an approach to interpreting federal statutes under which the courts are required to give substantial deference to the interpretations by the administrative agencies that enforce them. The Republicans in the House of Representatives have declared war on the Chevron doctrine, and they managed to pass H.R. 4768, the Separation of Powers Restoration Act of 2016, which amends section 706 of the Administrative Procedure Act (APA) to require federal courts reviewing decisions of law of administrative agencies to decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions.2 There appeared to be little chance that the Senate would join the House, at least in part because of the filibuster. And if it had, President Obama would have vetoed the bill, as would almost any other President.' Politics aside, is the Chevron doctrine sensible, at least in most cases, or is it as ill-advised as its opponents claim? This essay will argue that, by and large, Chevron makes sense in most cases, but that it needs some fine-tuning around the edges. In other words, mend it, don't end it. Before turning to possible adjustments, it is worth taking a minute to recall the origins of Chevron, and how the Supreme Court considered it to be quite unremarkable at the time it was decided. I. THE ORIGINS Chevron started as a challenge by environmental groups to the bubble rule that the Environmental Protection Agency (EPA) issued in 1981, at the start of the Reagan Presidency. The Carter Administration had proposed a * Lemer Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School; Senior Fellow, Administrative Conference of the United States. 1467 U.S. 837 (1984). 2 Separation of Powers Restoration Act of 2016, H.R. 4768, 114th Cong. (as passed by House, July 12, 2016). The version of H.R. 4768 in the current Congress is H.R. 76. For convenience, this essay will refer only to H.R. 4768. 3 As a technical matter, the choice made by the authors of H.R. 4768 to overrule Chevron only by amending 5 U.S.C. § 706 may leave a gaping loophole. For example, the Court was recently faced with a Chevron issue in Encino Motorcars, LLC. v. Navarro, 136 S. Ct. 2117 (2016), a private action, not brought under the APA. Given the specificity with which this amendment was written, the Court might well conclude that de novo review does not apply outside the APA, even though many cases of statutory interpretation of laws administered by federal agencies arise in private actions. Remanded, 845 F.3d 925, 926-27 (9th Cir. 2017), cert. granted, 198 L. Ed. 2d 780 (Sept. 28, 2017). 293

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