WHITHER CHEVRON? THE PAST, PRESENT, AND POSSIBLE FUTURES OF JUDICIAL DEFERENCE

Writen by Brandon R. Teachout^*

Since the rapid proliferation of administrative agencies in the New Deal era, a key issue concerning statutory interpretation has been: Who should fill the gaps of ambiguous statutes? And although the United States Supreme Court declared over two centuries ago in Marbury v. Madison that it is "emphatically the province and duty of the judicial department to say what the law is," it has generally tempered its exercise of that duty with deference to the statutory constructions of agencies charged with administering those statutes. This deference — based on the premise that there are only two political branches of American government, and the judiciary is not one of them — reached its apogee with the elucidation of the two-step namesake test of Chevron v. Natural Resources Defense Council. Now, however, following January’s argument of Loper Bright Enterprises v. Raimondo and Relentless Inc. v. U.S. Department of Commerce, the Court must decide whether it will wither or even overrule the Chevron doctrine — and if so, what will replace it. Whatever the result, the Court’s decision is likely to shape the balance of interpretative power between our three branches of government for decades to come.

CHRISTENING THE ADMINISTRATIVE STATE

The need to decide "who decides" in cases involving judicial review of executive action taken pursuant to delegated legislative authority arose almost immediately after Congress created the first U.S. regulatory agency, the Interstate Commerce Commission (ICC), in 1887.