Edward Whelan: Scalia and Gorsuch on Chevron Deference
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Edward Whelan: Scalia and Gorsuch on Chevron Deference

The argument that Justice Scalia embraced
in a noteworthy 1989 Law Review article, is that it was important and valuable to have
a default rule so the courts weren’t always trying to figure out, right at the beginning,
what do we do with this statute? Is this a statute that calls for us to defer
it to the agencies or not? He emphasized that Chevron was not, by any
means, constitutionally mandated. He believed that there was value in having
a clear rule up front for Congress to choose to depart from if it wanted to, to, for the
courts to have a clear rule to apply in reviewing agency action. And he thought, at the time, that it was more
consistent with the reality of the administrative state. He believed in a very robust Chevron doctrine
and as the court eviscerated Chevron, he became much less comfortable with what was left. Justice Gorsuch, as Judge Gorsuch, expressed
a view of Chevron and a judicial deference to administrative agencies generally that
is different in fundamental respects from Justice Scalia’s view. I think it’s much closer to positions that
Justice Thomas has expressed, very skeptical of judicial deference. Courts themselves should be saying what the
law is, not delegating this duty to administrative agencies and then deferring to those agencies. This relies on a very, um, s-, uh, strong
view of the, uh, judicial duty to say what the law is. Uh, they both, Justice Scalia and Justice
Gorsuch, have expressed doubts about Chevron’s illegitimacy that has implications for their
views of, of what Congress could do in the area, and also of where the, the court might
go. And so I think it’s interesting to see how
on the conservative side there is this real disparity in views on Chevron.

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