At the Mayflower Hotel in Washington, DC, on Friday, October 20, 2023, the George Mason Law Review will be hosting a terrific symposium entitled Chevron on Trial: The Supreme Court and the Future of Agency Authority and Expertise:
It’s a terrific line-up of speakers, and the event is open to the public. You can see the full schedule and register to attend the symposium here.
As part of the symposium, Kent Barnett and I will be contributing an essay, entitled Chevron and Stare Decisis, which is based on the amici curiae brief we filed in Loper Bright Enterprises v. Raimondo — the challenge to Chevron deference the Supreme Court will hear this Term and the subject of this symposium.
Here is the abstract:
In our contribution to this Chevron on Trial Symposium, we argue that the Supreme Court should not overrule Chevron in Loper Bright Enterprises v. Raimondo. We based our argument largely on statutory stare decisis. In particular, Chevron deference is a bedrock precedent in administrative law, relied on by the Supreme Court and the lower federal courts thousands of times since Chevron was decided in 1984. Congress, federal agencies, and the regulated public have also structured their affairs around the precedent. Conversely, the constitutional arguments against Chevron are unpersuasive, and the debate about the original understanding of judicial deference in the Administrative Procedure Act is murky at best. The doctrine of stare decisis, we submit, should be at its high point with respect to this statutory precedent.
Chevron deference, moreover, advances important rule-of-law values in administrative law. Aside from the conventional values of agency expertise, enhanced deliberative process, and more politically accountable policymaking, our empirical scholarship sheds light on two less-appreciated values: national uniformity and predictability in federal law and less politics in judicial decisionmaking. Finally, we argue, the Court’s recent approach to Chevron has already addressed the concerns raised about the precedent—i.e., through more searching inquiries at Chevron steps one and two and the introduction of the major questions doctrine.
You can read the full draft of the paper here. Comments are of course welcome.