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Whither Chevron? For several years, some justices of the Supreme Court have been questioning Chevron deference, partly on the basis of my constitutional critique of it. It was inevitable that someone would stand up in defense of that doctrine, and I am glad to say that my estimable former colleague Jonathan Siegel has stepped up to the plate. But the defense of the indefensible is not easy.

Although the long-standing conventional critique of Chevron was that it violates the separation of powers and federalism, my criticism is that Chevron deference corrupts the judicial process. As adumbrated in my 2014 book Is Administrative Law Unlawful? and developed in an article Chevron Bias, the constitutional problem with Chevron deference is twofold: its departure from independent judgment and its embrace of judicial bias.


Administrative Law | Courts | Law


Reprinted with permission by the Vanderbilt Law Review En Banc.