This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission.
Until recently, you could be a very well-informed American – a lawyer, even – without ever having heard of the Chevron doctrine. That has changed enough that last month, The New Yorker had a "Talk of the Town" essay discussing Kavanaugh's views of the Chevron doctrine. The reason for the attention to Chevron is ultimately congressional deadlock, which means that the only viable path for big changes in policy is through the administrative process. That's how Obama created DACA and the Clean Power Plan; it's how Trump is trying to roll back Obama's achievements.
The Chevron doctrine is a key part of the way courts review these administrative actions because it gives agencies leeway in interpreting the statutes that authorize administrative action. This doctrine is largely a recognition that Congress gave administrators, not courts, the primary responsibility for implementing regulatory statutes. This doctrine has become a target for conservatives because it allows agencies to innovate in response to new problems.
Lisa Heinzerling, Peter Shane, and I have written an Issue Brief for the American Constitution Society that develops a progressive agenda regarding Chevron and other important issues in administrative law, like the role of the White House in overseeing agencies. The Issue Brief seeks measured reforms – unlike conservative versions of regulatory ...