Toward a Context-Specific Chevron Deference

With Justice Scalia’s passing, the Supreme Court is less likely to consider overturning the administrative law doctrines affording deference to agency statutory interpretations (Chevron deference) or agency regulatory interpretations (Auer deference). Without Justice Scalia on the Court, however, a different kind of narrowing becomes more likely. The Court may well embrace Chief Justice Roberts’s context-specific Chevron doctrine, as articulated in his dissent in City of Arlington v. FCC and his opinion for the Court in King v. Burwell. This Article, which is part of a symposium on the future of the administrative state, explores the Chief Justice’s more limited approach to Chevron deference and details how recent empirical studies of statutory and regulatory drafters may well provide some support for a context-specific Chevron doctrine.

Although the wisdom of such a reform lies outside the Article’s scope, litigants and scholars should pay more attention to the Chief Justice’s dissent in City of Arlington, as it may well soon become the law of the land.