The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State

by Thomas W. Merrill

Overview

A leading expert on the administrative state describes the past, present, and future of the immensely consequential—and equally controversial—legal doctrine that has come to define how Congress’s laws are applied by the executive branch.

The Constitution makes Congress the principal federal lawmaker. But for a variety of reasons, including partisan gridlock, Congress increasingly fails to keep up with the challenges facing our society. Power has inevitably shifted to the executive branch agencies that interpret laws already on the books and to the courts that review the agencies’ interpretations.

Since the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, this judicial review has been highly deferential: courts must uphold agency interpretations of unclear laws as long as these interpretations are “reasonable.” But the Chevron doctrine faces backlash from constitutional scholars and, now, from Supreme Court justices who insist that courts, not administrative agencies, have the authority to say what the law is. Critics of the administrative state also charge that Chevron deference enables unaccountable bureaucratic power. Thomas Merrill reviews the history and immense consequences of the Chevron doctrine and suggests a way forward. Recognizing that Congress cannot help relying on agencies to carry out laws, Merrill rejects the notion of discarding the administrative state. Instead, he focuses on what should be the proper relationship between agencies and courts in interpreting laws, given the strengths and weaknesses of these institutions. Courts are better at enforcing the rule of law and constitutional values; agencies have more policy expertise and receive more public input. And, unlike courts, agencies are subject to at least some political discipline.

The best solution, Merrill suggests, is not of the either-or variety. Neither executive agencies nor courts alone should pick up the slack of our increasingly ineffectual legislature.

Product Details

ISBN-13:	9780674260450
Publisher:	Harvard University Press
Publication date:	05/17/2022
Pages:	368
Sales rank:	1,098,426
Product dimensions:	6.20(w) x 9.40(h) x 1.40(d)

About the Author

Thomas W. Merrill is the Charles Evans Hughes Professor at Columbia Law School. A former Deputy Solicitor General in the Department of Justice, he is a member of the American Academy of Arts and Sciences and has twice been honored by the American Bar Association for his work on administrative law.

Table of Contents

Introduction 1

1 Judicial Review of Agency Interpretation-Four Values 10

2 Before Chevron 33

3 The Chevron Decision 55

4 The Rise of the Chevron Doctrine 80

5 The Indeterminacies of the Chevron Doctrine 100

6 The Domain of the Chevron Doctrine 120

7 Rule of Law Values 145

8 Constitutional Avoidance 166

9 The Preemption Puzzle 182

10 The Principle of Legislative Supremacy 195

11 Discerning the Boundaries of Agency Authority to Interpret 217

12 Improving the Quality of Agency Interpretations 243

13 Reforming the Chevron Doctrine 257

Concluding Thoughts 274

Notes 283

Acknowledgments 341

Index 343

Editorial Reviews

Merrill’s rich history, his weighing of the comparative advantages of judicial and agency lawmaking, and his reflections on judicial and political choices to date provide informative guideposts for future decisions.

Choice

This book is a model of how to conduct rigorous, level-headed, and fair-minded analysis of a subject that has generated enormous legal controversy. There is no more judicious mind among American legal scholars than Thomas Merrill’s.

Nicholas Parrillo

Tom Merrill is one of the best scholars in the nation to undertake a book-length treatment of the Chevron doctrine. Thoughtful and nuanced, Merrill’s The Chevron Doctrine will be a ‘must-read’ not only for any lawyer or scholar involved in the field of administrative law, but also for any scholar interested in American legal thought of the past half century.

John F. Duffy

Tom Merrill is one of the brightest and best scholars of administrative law, and in particular of the Chevron doctrine, in his generation. This book sheds new light on the most controversial subjects in the law of the separation of powers and in administrative law. It is must-reading for any citizen who has an interest in the constitutionality of the administrative state.

Steven G. Calabresi

Merrill’s book tracks the doctrine’s history from its curious origins through its unlikely rise and expansion in a hundred-plus Supreme Court decisions to the fairly recent ‘sudden collapse of support for the doctrine’ among legal scholars and judges. His chapters on Chevron’s tortuous trajectory are a must-read for practicing or prospective administrative lawyers. They, as well as a broader audience, will find much good sense in the author’s judicious treatment of perennial questions of lawful government.

Claremont Review of Books - Michael S. Greve

Merrill’s interpretive and reform arguments in this fine work of scholarship are mature and sophisticated. This deeply considered work will enrich the ongoing debate.

Ronald M. Levin

Wise and illuminating…Merrill’s treatment of the rise of Chevron, and its various twists and turns over the decades, is keenly insightful.

New York Review of Books - Cass R. Sunstein

02/01/2022

Merrill (Columbia Law Sch.), a leading expert on U.S. administrative law, explains that the Supreme Court's 1984 decision in Chevron U.S.A. Inc. v. National Resources Defense Council provided a two-step test for judicial review of the way Congress's laws are applied by executive branch agencies. His 13 chapters examine how courts before and after the Chevron decision have judged challenges to federal agencies' interpretations of their statutory mandate. His lawyerly doctrinal discussion probes the fundamental question of who has the power "to say what the law is," as Chief Justice John Marshall put it in 1803. In the U.S. system of constitutional government, Congress, the courts, and agencies each have a say in interpreting the law; when interpretations clash, which two branches should defer to the third? Adopting an approach of trade-offs, Merrill argues that each branch's voice should arise from its comparative advantage, calibrating the degree to which each branch can make a positive marginal contribution to the process of legal interpretation while protecting rule-of-law values, institutional boundaries, and the need to refine law through trial-and-error experimentation. VERDICT Students of administrative law, the Constitution, Congress, or the federal courts will find much to mull about the operation and legitimacy of the U.S. administrative state.—Thomas J. Davis

Library Journal

Merrill has provided a rich account of how the Chevron doctrine came to be…A thorough and theoretically sophisticated legal analysis.

Congress & the Presidency - William F. West