At Powerline, Philip Hamburger: Chevron's Last Days? From the introduction:
This week’s writing on the wall — or at least what one can read between the lines — does not bode well for Chevron deference. When the Supreme Court upheld the IRS’s interpretation of Obamacare in King v. Burwell, it did not rely on Chevron. The government asked the Court to apply Chevron deference, but the Court exercised its own judgment about what the statute meant, and this already was interesting, for it suggested that the Court was unwilling to uphold so significant an agency interpretation under Chevron. Four days later, when the Court rejected the EPA’s interpretation of the Clean Air Act in Michigan v. EPA, it relied on Chevron, but only to reject the agency interpretation.
And from further along:
Indeed, what really is at stake here is not simply the Constitution, but the very legitimacy of the federal judiciary. Whatever their failings in departing from the Constitution, federal judges generally enjoy the reputation of being unbiased. But what if, in fact, they are systematically biased in favor of the government? Of course, this is not to say they are personally biased, but Chevron forces them to engage in institutional bias. This is the allegation of my essay “Chevron Bias.” It points out that in their Chevron deference, the judges have abandoned their duty of independent judgment. It adds that where the government is a party to a case (as in Michigan v. EPA), Chevron requires the judges to favor one of the parties — the most powerful of parties. This is systematic prejudice, and it delegitimizes the entire judiciary.
This is why Chevron is in play. Many judges, on the Supreme Court and below, are becoming deeply concerned about Chevron, lest it require them to give up their independent judgment and even become systematically biased.
Posted at 8:18 AM