This brief Article’s aim is not so ambitious as to praise or bury Chevron. It seeks only to make a more modest point about the Chevron doctrine and its domain.12 On the assumption that Chevron, in some form, will remain a significant part of the constellation of administrative law, this Article suggests Chevron’s domain should be defined and delimited by its doctrinal grounding. Put another way, the legal rationale for providing deference to agency interpretations of ambiguous statutory text should determine the doctrine’s scope and application. More precisely, insofar as the Court’s subsequent application and elucidation of Chevron have indicated that Chevron deference is predicated on a theory of delegation, courts should only provide such deference when the relevant power has been delegated by Congress (even if such delegation is only implicit). Correspondingly, such deference should be withheld when such delegation is absent or cannot be presumed to have occurred. Chevron should only prevail when confined to its proper domain, and its domain is a product of delegation.
Jonathan H. Adler,
Restoring Chevron’s Domain,
81 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol81/iss4/7