Michael Herz has posted this draft on SSRN (forthcoming, Columbia Law Review). Here is the abstract:
The Supreme Court’s decision in Chevron U.S.A. Inc. v. NRDC continues to obsess academics and courts alike. Despite all the attention, however, the “Chevron revolution” never quite happens, and the close of the Supreme Court’s 2014-15 Term was full of hints of new judicial skepticism about excessive judicial deference to agency decisions. So we have a decision that is seen as transformatively important but that is honored in the breach, in constant danger of being abandoned, and the subject of perpetual confusion and uncertainty. This article, written for a symposium in honor of Peter Strauss, seeks both to bury and to praise Chevron.
The article begins by describing Chevron as a form of self-regulation. That feature alone is enough to explain why it has not taken over the world and will never do so. The article then lays out a basic understanding of Chevron, focusing on the distinction between Chevron and the quite different model of deference exemplified by Skidmore v. Swift and Co. The argument here is for a reading of Chevron that is both weaker and stronger than that often proposed. On the one hand, courts retain an essential and meaningful role in determining the boundaries of what Peter Strauss has labeled “Chevron space”; they have real work to do. On the other hand, in doing that work, the views of the agency can never be ignored; in doctrinal terms, Skidmore applies within step one. These principles are explicated in part by reviewing the vocabulary of Chevron doctrine. This part concludes by placing Chevron in a jurisprudential framework that draws on the distinction between “interpretation” and “construction.” That distinction, or something like it, maps onto and helps elucidate the distinction between step one and step two. Courts have ultimate authority over interpretation but yield to agency construction.
Part III applies the framework developed in Part II to the Supreme Court’s 2013 decision in City of Arlington v. FCC, which held that Chevron applies to agency determinations going to their own jurisdiction. The majority and the dissent in that case were both correct, making City of Arlington that rare creature, a unanimous 6-3 decision.
Chevron is not a revolutionary shift of authority from the judiciary to the executive. That Chevron is dead. The Chevron that survives is an appropriate allocation of decisionmaking responsibility among the three branches, relying on the judiciary to enforce congressional decisions, but protecting agency authority and discretion where Congress has left the decision to the executive. Long may it reign.