Time to Rethink the Chevron Doctrine
Dan Alban of the Institute for Justice, spoke at the recent Freedom Seminar in Portland, Oregon. Dan debated in high school and at Berry College, so I asked about the NCFCA federal court system reform topic.
After some reflection, Dan suggested reforming the Chevron Doctrine, and he followed up via email with readings, including: Richard Samuelson’s “Time to Rethink the Chevron Doctrine” from the Library of Liberty and Law Blog:
The relevant precedent here might be the “Chevron Doctrine,” according to which courts are supposed to defer to bureaucrats in interpreting the law. That doctrine applies if there is an ambiguity. …
It is also worth asking whether the Chevron Doctrine is itself mistaken. I would argue that it has deeply troubling implications for republican self-government. … it is entirely reasonable for federal courts, although part of an equal and independent branch, to pay Congress a great deal of deference. It should presume that Congress would not intentionally violate the Constitution. …
A like deference emphatically is not owed to the federal bureaucracy. It may be that it is necessary, in 21st century America, for unelected bureaucrats to write much of our legal code. But if we are to sustain the separation of powers in general, and if we are to continue to have our laws written by the people’s Representatives and Senators, we need to proceed with caution. The very logic that suggests that courts should defer to Congress cuts the other way when bureaucratic rule-making is concerned. Tenured civil servants are not the people’s representatives. The Constitution, for that reason, does not give them the authority to write our legal code.
Also recommended: James DeLong’s article in Regulation: “The Chevron Doctrine: Running out of Gas” (pdf) and a September 18, 2005 Washington Legal Foundation article: “‘Chevron’ Deference Conflicts with the Administrative Procedure Act.”
George Will’s November 27 Washington Post opinion, “Battling the modern American administrative state” also looks at this debate.