Professor Kristin Hickman of the University of Minnesota Law School and I have posted our latest article, Chevron’s Inevitability, to SSRN. Kristin presented this article at the 2016 ABA Administrative Law Conference. The Article is forthcoming (very soon) in George Washington Law Review.
For over thirty years, Chevron deference has been the target of criticism. Now, some judges and legislators are calling for an end to Chevron, and legal scholars are heralding the doctrine’s retreat. Chevron may be evolving, as common law often does. But claims that Chevron is in decline are overblown, and efforts to overturn Chevron in any meaningful sense are misdirected. Chevron-style deference is inevitable in the modern administrative state. The real “problem” — to the extent one sees it as such — is not Chevron but rather unhappiness with the natural consequences of congressional reliance on agencies to resolve major policy issues.