Deference to Chevron Should Be Based on Delegation, Not Ambiguity

The Supreme Court’s recent hearing of two cases involving the petitioners’ appeal to reconsider the Chevron doctrine comes after years of concern and uncertainty about how it has been interpreted and applied in lower courts. In 2018, Justice Anthony Kennedy expressed doubts about Chevron’s interpretation, which has persisted without change for five years. The primary concern with the Chevron doctrine lies in how it has been applied, specifically in cases concerning the notice and enforcement of federal laws, which has allowed agencies to operate outside the bounds of proper interpretation of the law. Moreover, the argument for the reconsideration of Chevron derives from the failure of agencies and lower courts to respect the limitations of Chevron’s proper domain. Additionally, the question of delegation of authority that Congress grants to agencies must be considered when dealing with Chevron deference. Although several strategies have been suggested to address the issue, the focus must be on ensuring that Congress delegates authority to agencies. This could be achieved by overturning Chevron, including “Kisor-izing” Chevron, or adopting the Chief Justice’s Arlington dissent. No matter how the Court decides to address the Chevron doctrine, it will not hinder the functioning of the administrative state, as it operated before Chevron was established and will continue to do so after these cases are resolved.