Craig Green
88 Geo. Wash. L. Rev. 654
Chevron v. NRDC is under attack. Chevron deference to agencies’ statutory interpretation is a pillar of modern government that judges and bureaucrats have used almost every day for thirty years. Until recently, most observers dismissed efforts to overrule Chevron as impossible or absurd, yet one of Justice Anthony Kennedy’s last acts on the Supreme Court suggested that Chevron deference might violate the separation of powers.
Constitutional threats to Chevron are surprisingly recent and grave. In 2015, Justice Clarence Thomas was the first judge in history to write that Chevron is unconstitutional. Anti-Chevron critiques by Justices Neil Gorsuch and Brett Kavanaugh were featured elements of their Supreme Court nominations. Justice Samuel Alito joined an opinion in 2019 that condemned all administrative deference. And even though Chief Justice John Roberts’s concerns have been more nuanced, his ambivalence may be decisive. A landmark ruling seems imminent—one way or the other—and now is the time to analyze relevant arguments and consequences.
This Article examines the history and merit of Chevron’s constitutional critiques. Reagan-era conservatives like Antonin Scalia used to celebrate Chevron as compatible with the separation of powers, and the Supreme Court viewed administrative deference as a perfectly ordinary practice for almost two hundred years. That historical evidence supports normative arguments that Chevron is consistent with basic structures of constitutional law. Overturning Chevron would be the most radical decision in modern history about constitutional structure, upsetting hundreds of precedents, thousands of statutory provisions, and countless agency decisions. Such a ruling would transform constitutional law itself, as judges apply newly aggressive theories to destroy established tools of democratic self-governance.
