Deference and its Discontents: Will the Supreme Court Overrule Chevron? [October 11, 2018] [open pdf - 449KB]
"Less than a week before announcing his retirement, Justice Anthony Kennedy called for the Supreme Court to 'reconsider' the seminal administrative law doctrine known as Chevron deference in a concurring opinion in Pereira v. Sessions. The doctrine, established by the Court's opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., instructs that when reviewing certain agency interpretations of statutes,courts should defer to the agency's construction if the statute is ambiguous and the agency's construction is reasonable. Some members of the Court--namely, Justices Clarence Thomas and Neil Gorsuch--have called for reconsideration of Chevron. In addition, the newest Justice, Brett Kavanaugh, was a leading critic of the doctrine during his tenure on the U.S. Court of Appeals for the D.C. Circuit. The selection of Justice Kavanaugh has led commentators to question whether the Court might reconsider Chevron in the near future. As the Supreme Court's new term began this month, the Court confronted the issue of agency deference in Nielsen v. Preap, although Chevron itself did not come up during oral argument. Recent cases suggest, however, that the Court might continue to reaffirm the case's vitality, and if the Court were to reassess Chevron, it might be to narrow the circumstances under which the doctrine applies in lieu of jettisoning it."
CRS Legal Sidebar, LSB10204
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