At Law & Liberty, Adam White: Constitutional Government After Chevron? From the introduction:
By mid-summer, Chevron deference as we know it may be history. The Supreme Court could reform or even eliminate its forty-year-old doctrine that federal courts should generally defer to an agency’s reasonable interpretation of an ambiguous statute.
How would the end of Chevron deference affect our constitutional institutions? It’s far too soon to know—and not just because the Supreme Court has yet to decide Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. Even if the Court eventually reforms the Chevron framework or erases it outright, the decision’s full impact will not be seen clearly for months or years. Such was the case with Chevron itself: the Court’s decision was debated endlessly from the start, but its full effects would not be fully understood until decades later.
Still, it is not too soon to start thinking. Reforming Chevron along the lines suggested by some of the justices’ questions at oral argument would change the work of the courts. First, and most obviously, judges will need to work harder to interpret statutory text. This harder interpretive work, in turn, will place still greater weight on textualism itself—and on Congress’s own responsibility for crafting the texts in the first place. The post-Chevron era may also cause judges to think differently about the character of the administration. And if so, then the executive and legislative branches will have new reasons to change their own work, too.
This essay attempts to think through some possible second- and third-order effects of one of the most long-awaited decisions in modern administrative law. And even if these specific speculations are rendered moot by the Court’s eventual decision in Loper Bright and Relentless, the exercise can still help us think through the months and years ahead.
Posted at 6:02 AM