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Abstract

The Supreme Court’s willingness to defer to agency interpretations of ambiguous statutes has vacillated over the past seventy years. The Court’s vacillation has dramatically impacted the executive’s power to make and interpret law. This Article examines how the Court augmented then constricted executive lawmaking power and ceded then reclaimed executive interpretive power with a single case and its legal progeny.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.1 and its aftermath dramatically altered the executive’s power to make and interpret law. Prior to Chevron, Congress had the primary responsibility for lawmaking, while agencies made policy choices primarily when Congress explicitly delegated that power to them. Also, prior to Chevron, the judiciary resolved questions of statutory interpretation of regulatory statutes with a bifurcated approach: agencies did not receive deference when they resolved issues involving pure questions of law, but did receive some level of deference when they resolved issues involving questions of law application. In short, prior to Chevron, the executive was an expert advisor, not a law-maker or law interpreter.

With its holding in Chevron, the Court dramatically, and likely unintentionally,2 altered executive lawmaking and interpretive power. Specifically, executive power burgeoned. The sphere of legitimate agency lawmaking expanded because of the adoption of implicit delegation as a legitimate legislative mandate. The sphere of legitimate agency interpretation also expanded because the Court replaced its bifurcated deference approach with its now familiar two-step approach, under which the Court retained interpretive power at step one, but ceded interpretive power at step two. In summary, with Chevron the executive moved from expert advisor to quasi-law maker and quasi-law interpreter.

But this transition was short-lived. Today, the Court is reclaiming the power it both surrendered and transferred with Chevron. With two important changes to Chevron’s application—restricting the types of agency interpretations entitled to deference and curbing the implied delegation rationale—the Court has begun to reclaim the interpretive power it ceded and the lawmaking power it shifted with the rise and fall of Chevron. Simply put, the Court has come full circle by expanding executive power and then dramatically contracting it.

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1.467 U.S. 837 (1984) (unanimous opinion). Justices Marshall, Rehnquist, and O’Connor took no part in the decision. Id. at 866.

2.See Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969, 976 (1992) [hereinafter Merrill, Judicial Deference] (“Justice Stevens’ opinion contained several features that can only be described as ‘revolutionary,’ even if no revolution was intended at the time.” (citations omitted)).

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