The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State
The Constitution makes Congress the principal federal lawmaker. But for a variety of reasons, including partisan gridlock, Congress increasingly fails to keep up with the challenges facing our society. Power has inevitably shifted to the executive branch agencies that interpret laws already on the books and to the courts that review the agencies’ interpretations.
Since the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, this judicial review has been highly deferential: courts must uphold agency interpretations of unclear laws as long as these interpretations are “reasonable.” But the Chevron doctrine faces backlash from constitutional scholars and, now, from Supreme Court justices who insist that courts, not administrative agencies, have the authority to say what the law is. Critics of the administrative state also charge that Chevron deference enables unaccountable bureaucratic power.
Thomas Merrill reviews the history and immense consequences of the Chevron doctrine and suggests a way forward. Recognizing that Congress cannot help relying on agencies to carry out laws, Merrill rejects the notion of discarding the administrative state. Instead, he focuses on what should be the proper relationship between agencies and courts in interpreting laws, given the strengths and weaknesses of these institutions. Courts are better at enforcing the rule of law and constitutional values; agencies have more policy expertise and receive more public input. And, unlike courts, agencies are subject to at least some political discipline. The best solution, Merrill suggests, is not of the either–or variety. Neither executive agencies nor courts alone should pick up the slack of our increasingly ineffectual legislature.
Administrative Law | Legal History
Harvard University Press
“Merrill’s interpretive and reform arguments in this fine work of scholarship are mature and sophisticated. This deeply considered work will enrich the ongoing debate.”
—Ronald M. Levin, Washington University School of Law
“Tom Merrill is one of the best scholars in the nation to undertake a book-length treatment of the Chevron doctrine. Thoughtful and nuanced, Merrill’s The Chevron Doctrine will be a ‘must-read’ not only for any lawyer or scholar involved in the field of administrative law, but also for any scholar interested in American legal thought of the past half century.”
—John F. Duffy, University of Virginia School of Law
“This book is a model of how to conduct rigorous, level-headed, and fair-minded analysis of a subject that has generated enormous legal controversy. There is no more judicious mind among American legal scholars than Thomas Merrill’s.”
—Nicholas Parrillo, Yale Law School
“Tom Merrill is one of the brightest and best scholars of administrative law, and in particular of the Chevron Doctrine, in his generation. This book sheds new light on the most controversial subjects in the law of the separation of powers and in administrative law. It is must-reading for any citizen who has an interest in the constitutionality of the administrative state.”—Steven G. Calabresi, Northwestern University Pritzker School of Law
Merrill, Thomas W., "The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State" (2022). Faculty Books. 335.