Document Type

Working Paper

Publication Date

2018

Abstract

Justice Kennedy's concurrence in Pereira gives reason to hope that the Court may be finally catching on to the difficulties it created by Chevron's opening language, as distinct from its inherent reasoning. When courts quote language like "precise question" and "permissible" to limit themselves (as Justice Scalia and others unfortunately tended to reinforce by their quotations from the opinion), they stray not only from judicial function but also from the statute (APA) that instructs them how to review, and which strangely the opinion does not mention. But Chevron actually (a) independently found and defined a statutory gap within which the EPA would have authority to act (infra vires) and then (b) reviewed its action for reasonableness. There is no problem reconciling this approach with either proper judicial function or 5 USC 706.6.

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