The topic for discussion is formalism and deference in administrative law. As we know, the landmark case of Chevron v. Natural Resources Defense Council has changed the face of modern administrative law. The panel will address the rightness and limitations of Chevron deference, especially in the context of agency decisions on the scope of the agencies’ jurisdictional mandates. Should the federal courts defer, or should they not defer in this context? We need guidance. Justices Scalia and Thomas recently differed from Chief Justice Roberts and Justices Kennedy and Alito on these issues. Who is right, and why? Does the answer depend in any measure on the growth of the administrative state, and are there larger issues of jurisprudential philosophy at stake? It may just come down to what you are really afraid of in this fundamental disagreement that the Justices are having. Chief Justice Roberts describes it as a “fundamental disagreement.” Are you afraid, as Justice Scalia discusses, of a lack of stability and chaos, of unaccountable federal judges running muckety-muck, deciding numerous issues in sundry ways, or as the Chief Justice recounts, are you afraid, in the words of Madison, of the “accumulation of all powers, legislative, executive, and judiciary, in the same hands” in a vast and evergrowing administrative state?
Administrative Law | Law
Kristen E. Hickman, Jide O. Nzelibe, Thomas W. Merrill, Philip A. Hamburger & Jennifer Walker Elrod,
Formalism and Deference in Administration Law,
U. Dayton L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3816