The Constitutional Case for "Chevron" Deference

An icon of administrative law is under attack. Prominent figures in the legal world are attacking Chevron. The critics could hardly have gone after a bigger target. Chevron is the most-cited administrative law case of all time.

Every law student who has taken a basic course in administrative law is familiar with the principle of "Chevron deference," under which courts must defer to an executive agency's reasonable interpretation of an ambiguous provision of a statute the agency administers. The current attack on Chevron does not merely suggest that courts should limit the case's application. It is true that the Supreme Court has recently limited Chevron in various ways-it has, for example, limited the kinds of agency pronouncements that are entitled to deference, and it has declared that some matters are so momentous that Chevron does not apply to them. But the latest attack goes far beyond that.

The latest claim is that the very concept of Chevron deference is unconstitutional. Judges, legislators, and scholars have suggested that the Constitution imposes a duty on courts to exercise "independent judgment" when interpreting a statute. This duty, Chevron's critics say, derives from Article III's vesting of the "judicial Power" in the courts, and it forbids courts from deferring to an agency's interpretation.