Magazine June 24, 2019, Issue

What’s Wrong with Chevron Deference Is Congress

Chief Justice John G. Roberts, former Associate Justice Anthony M. Kennedy, and Associate Justice Stephen Breyer (Kevin Lamarque/Reuters)
Our legislature is far too willing to delegate its authority

Anthony Kennedy likely won’t be remembered for his administrative-law jurisprudence, but one of his last opinions on the Supreme Court captured widespread concerns about the administrative state. Concurring with the majority opinion in Pereira v. Sessions, Justice Kennedy lamented the “reflexive deference” lower federal courts often show federal agencies, particularly on questions of statutory interpretation under the doctrine of “Chevron deference.” Kennedy lamented how this doctrine had “come to be understood and applied” in federal courts and suggested it was “necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that

This article appears as “The Danger of Deference” in the June 24, 2019, print edition of National Review.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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