Philip Hamburger ·
84 Geo. Wash. L. Rev. 1187 ·
This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges—questions that have not yet been adequately asked, let alone answered.
One question concerns independent judgment. Judges have a constitutional office or duty of independent judgment, under which they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked whether they are violating their duty to exercise their own independent judgment.
A second question concerns systematic bias. Under the Fifth Amendment right to the due process of law, judges cannot engage in systematic bias. Therefore, when they defer to agency interpretations of the law, it must be asked whether they are engaging in systematic bias in favor of the government and against Americans, thus denying them the due process of law.
These constitutional questions require judges to reconsider Chevron. Rather than dwell on the usual statutory question about authorization, judges (including lower court judges) need to focus on the constitutional questions about their own role.
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