I argue that such an alternative regime has appealing features but may not bring as much practical change as casual critiques or defenses of Chevron contemplate, at least immediately. The more immediate change would arise at the level of theory and rhetoric, which, in turn, may lead to greater practical changes in the longer run. The theoretical presuppositions underwriting a regime of non-deferential review are far more classical in cast than the moderate legal realism underwriting Chevron. Rejecting deference, therefore, would change how courts talk about the difference between law and policy in the administrative state. The resurrection of the classical distinction between interpreting and making law might therefore alter the way courts think about that relationship. If that is the case, rejecting deference could lead to a more robust judicial role on close questions of interpretation
Jeffrey A. Pojanowski,
81 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol81/iss4/12