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16 Geo. J.L. & Pub. Pol'y 103 (2018)
Attacking Auer and Chevron Deference: A Literature Review

handle is hein.journals/geojlap16 and id is 111 raw text is: Attacking Auer and Chevron Deference: A Literature Review CHRISTOPHER J. WALKER* ABSTRACT In recent years, there has been a growing call to eliminate-or at least narrow-administrative law's judicial deference doctrines regarding agency interpretations of law. As part of the Challenging Administrative Power Sympo- sium sponsored by the Georgetown Center for the Constitution and the Institute for Justice, this Article surveys the key arguments against Auer and Chevron deference that have emerged in recent years. In so doing, the Article seeks to help judges, legislators, litigants, and scholars focus their calls for reforming how courts review agency interpretations of law. TABLE OF CONTENTS INTRODUCTION .......................................... 104 1. AUER DEFERENCE .................................... 105 A. Case for Eliminating ... ............................. 105 B. Case for Narrowing ... ............................. 107 1. No Deference When Unfair Surprise ............... 107 2. A Return to a Skidmore-Like Standard ............. 108 3. A Cabined Auer Deference ...................... 108 4. Mead-Like Constraints for Auer ..................... 109 II. CHEVRON DEFERENCE ................................. 110 A. Case for Eliminating ... ............................. 110 1. Article III Concerns ........................... 111 2. Article I Concerns ............................ 112 3. Article II Concerns ........................... 113 * Associate Professor of Law, Michael E. Moritz College of Law, The Ohio State University. For helpful comments, thanks are due to the symposium participants, including Jonathan Adler, Aditya Bamzai, Randy Barnett, Emily Bremer, Ron Cass, Andrew Grossman, Philip Hamburger, and Ilan Wurman, as well as to my research assistant Kenzie Nothnagel. The Author received funding from the Georgetown Center for the Constitution and the Institute for Justice-the symposium sponsors-for his work on this Article. © 2018, Christopher J. Walker.

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