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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).


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