• Edward Whelan: Scalia and Gorsuch on Chevron Deference
    Articles,  Blog

    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…

  • Kisor v. Wilkie [SCOTUSbrief]
    Articles,  Blog

    Kisor v. Wilkie [SCOTUSbrief]

    The Kisor case centers around a Department of Veterans Affairs regulation governing the ways in which veterans can apply for disability benefits or reopen past claims in which their appeals for benefits were denied. In this case, the question is whether Mr. Kisor has new information that is relevant, that’s the word in the regulation, “relevant,” to his previous claim that was denied. The word relevant appears in a VA regulation and so the litigation is all about the question of whether the agency is obeying its own regulations as it denies Mr. Kisor’s claims. In a narrow sense, the issue of the case is whether Mr. Kisor is entitled…