"For over a decade, I have suggested that the Chevron doctrine is in tension with fundamental separation of powers principles. Now, the Supreme Court has agreed to consider overruling Chevron “or at least clarify” that agency interpretations are not entitled to deference in some instances of “statutory silence." With a Court majority that is more attuned – and devoted to – foundational separation of powers principles, the Supreme Court's coming reconsideration of Chevron is welcome.
I do not mean to suggest that overruling Chevron should be considered a slam dunk, or that doing so will be without consequences for both Congress and the administrative state. While in theory, and occasionally in practice, the Chevron deference doctrine operated to affirm 'deregulatory' as well as 'regulatory' interpretations of the agency authority, in the real world of the administrative state, overall, more often than not, the doctrine led to judicial affirmance of agency decisions that expanded the boundaries of an agency's authority.
So, if Chevron is overturned or even narrowed meaningfully, one consequence is likely to be curbing the power of the administrative state. The other is that it may force Congress to take more responsibility for writing laws that more specifically delimit agency actions – that is, to write less ambiguous laws. Because Members of Congress, as elected representatives of the people, are directly accountable to the people in a way that unelected administrative agency officials are not, this increased political accountability comports with separation of power principles. [NOTE: The Supreme Court has already taken an important step in this direction with the adoption of the Major Questions Doctrine in West Virginia v. EPA (2022).]
Under our Constitution, in our tripartite system of separated powers, there will always be tensions among the three branches – Congress, the Executive, and the Judiciary – and legitimate questions regarding the extent of their respective powers. But as Chief Justice John Marshall proclaimed in the landmark case of Marbury v. Madison (1803): "It is emphatically the duty of the Judicial Department to say what the law is."
In a law review article published this year, NFIB v. OSHA: A Unified Separation of Powers Doctrine and Chevron's No Show, I concluded (with co-author Andrew Magloughlin) that Chevron "is on the verge of falling from grace in one way or the other." I suspect that the Supreme Court will overturn, or at least substantially curtail, the Chevron deference doctrine, and that when it does, Chief Justice Marshall's admonition, now over two centuries old, will play a prominent role in further reviving fundamental separation of powers principles."
* * *
Mr. May is a past Chair of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He is a Fellow of the National Academy of Public Administration. Mr. May also has served as a Public Member of the Administrative Conference of the United States and currently is a Senior Fellow at ACUS. He has served as Associate General Counsel of the Federal Communications Commission.
For decades, he has published extensively on administrative law, including the Chevron doctrine and the Major Questions doctrine. For background pertinent to the Chevron doctrine, see these law review articles:
Randolph J. May, NFIB. OSHA: A Unified Separation of Powers Doctrine and Chevron's No Show, South Carolina Law Review, Vol. 74, No. 2 (2022) (with Andrew K. Magloughlin)
Randolph J. May, Defining Deference Down, Again: Independent Agencies, Chevron Deference, and Fox, Vol. 58, No. 2 (2006)
Randolph J. May, Defining Deference Down: Independent Agencies and Chevron Deference, Vol. 58, No. 2 (2006)
Posts
