At Law & Liberty, John McGinnis: The Chevron Doctrine’s Shrinking Domain. From the introduction:
Today, Chevron is under fire. It has not been overruled nor do I think it is likely to be. But its domain is shrinking and will continue to get smaller. If President Trump gets another term, it may well resemble the Cheshire cat—a still-powerful symbol for a body of law without much doctrinal substance. Just as Chevron was an iconic decision marking the continuing rise of the power of the administrative state, its relative decline in importance captures the three reasons that the administrative state is being cut back. Thus, this essay will use Chevron to introduce these three factors—the return of originalism, the rise of textualism, and the greater distrust of unsupervised expertise—that are transforming administrative law and, with it, the administrative state.
On Chevron and originalism:
The most important influence is the rise of originalism, because important elements of the administrative state, including Chevron, are in tension with the original Constitution’s separation of powers. For instance, given that the Constitution grants Congress legislative authority, it seems anomalous that the executive can wield these powers and make its own determination of what is legal through statutory interpretation. To be sure, the question of where the legislative power ends and the executive power begins is a difficult one, but that does not mean that a line cannot be drawn. For instance, Chief Justice John Marshall captured an important distinction in the Founding era when he suggested that Congress must legislate on important subjects when they affect private rights even if the executive could be left to fill in the details.
Chevron thus potentially ran afoul of the nondelegation doctrine by allowing the agencies to make major decisions about what the law meant, not just fill in the details of intricate statutes. But in the recent case of King v. Burwell, Chief Justice Roberts made clear in a majority opinion that the Chevron doctrine would not apply to major questions, such as the one in that case (whether Affordable Care Act tax credits should be provided to those purchasing insurance under federal as well as state exchanges). While Roberts suggested that Congress would not want Chevron to apply to such major questions, the more persuasive basis of the decision is the nondelegation doctrine. Applied to major questions, Chevron, as originally decided, sustains a huge delegation of legislative power to the agency, permitting it to interpret a central element of a statute….
And on Chevron and textualism:
Textualism is also playing a part in shrinking Chevron. The doctrine seems to assume an intentional method of interpretation of statutes. In Chevron, Justice John Paul Stevens stated that an agency is bound by “a clear intent of Congress,” but “otherwise can provide its own reasonable interpretation.” But if textualism is used as the method of statutory interpretation, the question becomes not whether Congress had any conscious intent on a particular issue, but rather whether the text speaks to the issue. That more encompassing inquiry can reduce the scope for agency power ….
Posted at 6:56 AM