End the Failed Chevron Experiment Now: How Chevron Has Failed and Why it Can and Should Be Overruled

Abstract

In Chevron U.S.A., Inc. v. NRDC, decided in 1984, the Supreme Court announced a startling new approach to judicial review of statutory interpretation by administrative agencies, which requires courts to defer to agency interpretations of ambiguous statutes. Although it was perhaps hoped that Chevron would simplify judicial review and increase deference to agency interpretation, the opposite has occurred. Chevron has complicated judicial review and at best it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled. Further, overruling Chevron would be consistent with the practice of stare decisis because it is a judge-made rule, has proven unworkable in practice, is inconsistent with a governing statute and has not spawned settled expectations that would be upset if it is overruled. Finally, the Chevron doctrine should be replaced either by reviving, with minor modifications, pre-Chevron practice, or with a slightly modified version of Skidmore deference.