After Justice Scalia’s passing (and even before it), word began to bubble up that he had been seriously rethinking Chevron, given his increasing doubts that the framework was tenable and productive. In the absence of a published opinion, it’s mainly been just the stuff of gossip—although gossip from sufficiently credible sources that I’ve felt confident mentioning it on this blog and in my longer essay on his legacy and in congressional testimony.
So it’s interesting to see a couple more recent mentions of this from people close to Scalia:
Most significantly, Justice Alito mentioned it in remarks at the Federalist Society’s national lawyers convention this week, as reported today by Greenwire. It came up in Alito’s discussion of UARG v. EPA:
“Nino’s opinion for the court held that this was illegal, but four of our colleagues thought that what the EPA did was just fine under Chevron,” Alito said, referring to the legal doctrine established in Chevron USA Inc. v. Natural Resources Defense Council holding that agencies should be granted deference when Congress hasn’t clearly spoken to a particular issue.
Scalia became a scourge of Chevron in recent years. That doctrine often plays a major role in environmental lawsuits, where agencies argue they should have the ability to use their technical expertise when issuing regulations.
“Before his death, Nino was also rethinking the whole question of Chevron deference,” Alito said. Cases, including Utility Air Regulatory Group, he added, “show that agencies were exploiting Chevron to usurp Congress’ lawmaking authority.”
Meanwhile, John Manning has a much more subtle allusion to Scalia’s shift, in a footnote to his Harvard Law Review remembrance:
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). In those days, Justice Scalia was very keen on the Chevrondoctrine. See Scalia, supra note 24, at 516–17 (praising Chevron).
I expect to see more published along these lines before long, but in the meantime I think it’s interesting to see respected people—especially Justice Alito—putting this into the public debate
Adam J. White is a research fellow at the Hoover Institution for War, Revolution, and Peace.