Notice & Comment: Coping with Chevron: Justice Gorsuch’s Majority and Justice Breyer’s Dissent in SAS Institute

Yesterday, I made my debut on Yale Journal on Regulation: Notice & Comment.  The Post discusses the Supreme Court’s recent opinion in SAS Institute Inc. v. Iancu and the views of Chevron represented in that opinion.

Neither Justice Breyer nor Justice Gorsuch are fond of the “mandatory,” two-step approach to Chevron. Shortly after the D.C. Circuit molded the two-step standard from Justice Stevens’s opinion, then-Judge Breyer argued that a mandatory version of Chevron would result in a “greater abdication of responsibility to interpret the law than seems wise.” Since joining the Court, Justice Breyer has consistently maintained that Chevron made no relevant change” to the multi-factor Skidmore test. In a similar vein, then-Judge Gorsuch once asked, “[W]hat would happen in a world without Chevron?” He replied, “The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is.” Both justices have besmirched Chevron as an affront to judicial independence—an impermissible delegation of interpretive authority to executive agencies. However, Justice Breyer and Justice Gorsuch have coped with Chevron’s continued prevalence in different ways.

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