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Counterpoint: Chevron case creates imbalance

Iain Murray | June 20, 2018

he famous passage from James Madison in the Federalist Papers, Essay 51—“If men were angels, no government would be necessary”—reveals where the problems lie with Chevron deference, the judicial doctrine that says that in certain cases courts should defer to the interpretation of law used by the executive branch. Chevron deference accords the executive branch angelic status, rather than recognizing that it is staffed by fallible men, and that results in some devilish behavior.

In the typical Chevron deference case, a citizen will have a grievance with an agency concerning an interpretation of the law. The court will first ask whether the statute is clear as to Congressional intent. If that is not the case, it will likely defer to the agency’s interpretation of the law, as long as it has some rational basis, even when the agency has changed course. In practice, this weighs the balance very clearly toward the agency and the citizen has little hope of...

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