The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State

Harvard Univ. May 2022. 368p. ISBN 9780674260450. $35. LAW
Merrill (Columbia Law Sch.), a leading expert on U.S. administrative law, explains that the Supreme Court’s 1984 decision in Chevron U.S.A. Inc. v. National Resources Defense Council provided a two-step test for judicial review of the way Congress’s laws are applied by executive branch agencies. His 13 chapters examine how courts before and after the Chevron decision have judged challenges to federal agencies’ interpretations of their statutory mandate. His lawyerly doctrinal discussion probes the fundamental question of who has the power “to say what the law is,” as Chief Justice John Marshall put it in 1803. In the U.S. system of constitutional government, Congress, the courts, and agencies each have a say in interpreting the law; when interpretations clash, which two branches should defer to the third? Adopting an approach of trade-offs, Merrill argues that each branch’s voice should arise from its comparative advantage, calibrating the degree to which each branch can make a positive marginal contribution to the process of legal interpretation while protecting rule-of-law values, institutional boundaries, and the need to refine law through trial-and-error experimentation.
VERDICT Students of administrative law, the Constitution, Congress, or the federal courts will find much to mull about the operation and legitimacy of the U.S. administrative state.
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