In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron

Author(s)

Terence J. McCarrick, Jr.

Details

Faculty editor: Lawrence A. Alexander
Publication: Law Review
Volume: 55
Issue: 1
Start Page: 55
Month: March
Year: 2018
Type: Article
Instititional Repository (IR): View full article

Abstract

This Article hopes to help fill that “important gap in the administrative law literature.” And it proceeds in three parts. Part II offers a brief history of the Chevron doctrine and its discontents. It traces the doctrine’s origin and scope and ends by articulating the textualist and originalist critique of Chevron described above. Part III grapples with that criticism and offers a textualist and originalist defense of Chevron. Section III.A describes the textual footing for Chevron in the APA and argues that Chevron—if not commanded by the APA—does not upset the role it envisions for courts. Section III.B describes the approach of founding-era courts to administrative deference and suggests that they establish a proto-Chevron consensus. Part IV is more ambitious—it articulates a separation-of-powers basis for administrative deference. Section IV.A explains that courts in the early Republic recognized the President’s Article II authority to exercise policymaking discretion conferred by law. And exercises of that discretion were generally held unreviewable by courts. Section IV.B argues that the original public meaning of Article II supports Chevron, drawing on early-American and pre-founding English political theory. Make no mistake: I come to praise Chevron, not to bury it.