Revisiting Congressional Delegation of Interpretive Primacy as the Foundation for Chevron Deference

Mark Seidenfeld

Supreme Court Economic Review, 2016, vol. 24, issue 1, 3 - 40

Abstract: Although congressional delegation is the rationale used most often to justify the Chevron doctrine, most scholars who have written about this justification have recognized that it is a fiction, albeit, they claim, a useful one. In "Chevron's Foundation," I proposed an alternative foundation for the Chevron doctrine--a judicial self-limitation justification for Chevron deference--based on an implicit understanding of Article III that courts should not resolve cases by making policy choices where alternative means for deciding these cases exists. In this essay, I first revisit my original critique of the delegation rationale and explicitly respond to the arguments for that foundation that were published after my prior work on Chevron. Although I think that these arguments muddy the waters regarding congressional delegation by providing evidence that there are at least some cases in which Congress purposely means to grant agencies interpretive primacy, I conclude that this is still unlikely to be true with respect to most statutory ambiguities, and hence that in most cases such delegation is still a fiction. I then proceed to consider how the rejection of congressional intent to delegate interpretive primacy to agencies bears on the judicial developments in the application of Chevron that post-date my prior work.

Date: 2016
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