Is the Chevron Era About to End?

• Author: Adler, Jonathan H.
• Position: The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State

The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State

By Thomas W. Merrill 336 pp.; Harvard University Press, 2022

No one expected the Supreme Court decision in Chevron v. Natural Resources Defense Council would become a landmark of federal administrative law, least of all its author. The 1984 case presented a relatively routine scenario: a federal agency adopted regulations that interest groups opposed, and the courts were called upon to decide whether the agency had overstepped its bounds. Writing his opinion for the Court, Justice John Paul Stevens thought he was applying well-settled principles of judicial review of agency action. As the opinion was unanimous, his colleagues seemed to agree.

But buried in the opinion was a new and deceptively simple test. First, courts must consider whether the relevant statutory text answers the question at hand. If so, courts should follow Congress's command. If, on the other hand, the reviewing court finds the statute ambiguous, it must defer to the agency's interpretation, provided it is reasonable. Before long, this test was dubbed a doctrine, and the rest is history.

For most of the past 40 years, the Chevron doctrine has defined the parameters of judicial review of agency action, and Chevron v. NRDC is one of the Court's most cited administrative law decisions of all time. Yet a growing number of jurists and commentators have begun questioning the doctrine and how it is applied in federal courts.

Critics maintain Chevron encourages courts to abdicate their obligation to say what the law is and makes it too easy for agencies to make policy decisions that are properly left to the legislature. In one of his last opinions for the Court, Justice Anthony Kennedy lamented how the doctrine encouraged "reflexive deference" by lower courts and suggested the Court "reconsider the premises that underlie Chevron and how courts have implemented" it. Kennedy's replacement, Justice Neil Gorsuch, would agree. Before he was appointed, then-judge Gorsuch labeled Chevron a "behemoth" that "permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design."

In his recent book The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State, Columbia law professor Thomas Merrill expertly assesses the doctrine and where it has gone wrong. The book provides a rich and insightful account of how the Chevron doctrine came to be and how it came to be so controversial...