• 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…