Scrutinizing Deference to Administrative Agencies

Editor’s Note: See, The Evolution of Chevron Deference: The Need for Public Involvement.

From: The Regulatory Review

A forthcoming article by Christopher J. Walker, a law professor at The Ohio State University Moritz College of Law, surveys recent arguments in favor of scaling back or eliminating judicial doctrines under which federal courts defer to agency interpretations. Walker disclaims any attempt to “break major new ground” in the debates over whether deference should be modified by the courts or which arguments for doing so are strongest. Rather, Walker aims in his article to “provide a literature review of sorts concerning the arguments that have been advanced in recent years to eliminate or narrow” the courts’ deference doctrines. Recognizing “a growing call to eliminate—or at least narrow—administrative law’s judicial deference doctrines regarding agency interpretations of law,” Walker assesses recent arguments against Chevron and a related doctrine known as Auer in an effort to help “judges, legislators, litigants, and scholars better focus arguments for reforming how federal courts review agency interpretations of law.”

The Chevron doctrine—named after the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Councilprovides that when litigants challenge agency decisions in court, judges must “defer to an agency’s interpretation of a statute the agency administers” whenever the law at issue is “ambiguous” and “the agency’s interpretation of the statutory ambiguity is reasonable.” Auer deference—which came from the Supreme Court’s 1997 decision in Auer v. Robbins—in turn provides that courts ordinarily defer to an agency’s interpretation of its own regulations unless an interpretation is “plainly erroneous or inconsistent with the regulation.”

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