What’s Wrong with Chevron Deference Is Congress

Anthony Kennedy likely won’t be remembered for his administrative-law jurisprudence, but one of his last opinions on the Supreme Court captured widespread concerns about the administrative state. Concurring with the majority opinion in Pereira v. Sessions, Justice Kennedy lamented the “reflexive deference” lower federal courts often show federal agencies, particularly on questions of statutory interpretation under the doctrine of “Chevron deference.” Kennedy lamented how this doctrine had “come to be understood and applied” in federal courts and suggested it was “necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”

Justice Kennedy is hardly alone in having raised doubts about Chevron. Justice Clarence Thomas has warned that Chevron unduly constrains the judicial function, and Justice Neil Gorsuch, even before he was on the Court, warned that it “seems” to constitute “a judge-made doctrine for the abdication of the judicial duty” that threatens to transfer “the job of saying what the law is from the judiciary to the executive,” inviting “the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.”

Click here to read more of this National Review article by Jonathan H. Adler.