University of Mississippi School of Law
Article is a transcript from the 2014 National Lawyers Convention panel on Millennials, Equity, and the Rule of Law. A video recording of the panel can be viewed here.
JUSTICE DON WILLETT: ... because Chevron deference is kind of like bacon. Some people like their Chevron deference rigid and crisp. Other people like it a little squishy and a little bendable. A few people dislike it altogether, no matter how it's served. But Chevron' is now thirty years old, older than a number of people in the audience today, and a lot has changed. The regulatory state has exploded, in terms of size and scope, over the last thirty years, becoming arguably a fourth branch of government altogether.
So, is it time to revisit and think anew about judicial deference to agency decision-making? Do Chevron's virtues outweigh the vices? Have courts gone too far? Has Chevron deference devolved into Chevron dereliction? Are courts moving increasingly from adjudication to abdication, letting the foxes guard the agency henhouse? So it is a thorny question that vexes the Court, and not along the usual ideological lines. We have three former administrative law professors on the U.S. Supreme Court. They have very fervent, strongly held views on Chevron and Chevron deference. And the Court is going to have, undeniably, some pretty high-profile opportunities in the near term, I believe, to revisit and possibly recalibrate Chevron.
Jack M. Beermann, Charles J. Cooper, Thomas W. Merrill, Amy Wildermuth & Don R. Wildermouth,
Litigation: Time to Revisit Chevron Difference
Mississippi Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3552