Why is the Chevron Doctrine Still Controversial? [No. 86]
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Why is the Chevron Doctrine Still Controversial? [No. 86]


The Chevron doctrine, which says that when
agency interpretations of laws that they administer are challenged in federal court, the court
isn’t supposed to figure out the right answer to the question of statutory interpretation. It’s supposed to look for a clear answer,
and if there isn’t a clear answer, you approve the agency decision as long as it’s reasonable. That’s been one of the most controverted doctrines
of administrative law over the last three and a half decades, even during a time in
which it’s been the dominant approach in that respect. What do I mean by all of that? Well, a lot of the opposition to Chevron from
the moment that the doctrine was first developed by the lower courts through today has focused
on what it is the judges are supposed to do. What judges are supposed to be good at is
figuring out what the law means. Why would you allocate decision-making authority
on that matter to agencies rather than courts? It doesn’t make any sense. That argument has been around for a very long
time. The counter to that is, well, that might be
true if what was going on in these administrative cases is the interpretation of statutes. But it’s not. It looks like the interpretation of statutes. There are these words written down in the
United States code, and the agency is mouthing things that involve those words in the United
States code, but those things in the United States code aren’t really functioning as statutes
in the sense of creating legal rights and obligations. They’re delegations. Sub-delegations. They’re authorizations to the agency to go
forth and do good, to make policy. If you’re choosing between the agencies and
the courts as policy makers, well, the agencies have both an expertise and a democratic pedigree
that the courts don’t have. So a lot of the arguments about the wisdom
or validity of Chevron turn on very, very deep questions about what exactly is going
on when agencies intone the language of statutes and you have to decide, in a world without
a non-delegation doctrine, are those statutes really creating law or are they creating law
givers, charging the agencies with making the policy? Because these issues involve deep questions
of jurisprudence, that’s part of why they have been so controversial.

3 Comments

  • Tyson211

    Chevron’s made judges lazy and they’re too quick to defer to agencies. But I’m not sure I want judges interpreting statutes to suit their own agendas either. I think if a statute is ambiguous it should go back to Congress and force them to take responsibility since they are accountable to the people.

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