Abandon Chevron and Modernize Stare Decisis for the Administrative State
Murphy, Richard W.
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Critics including Justices Gorsuch and Thomas have recently condemned the Chevron doctrine, which requires courts to defer to an agency’s reasonable construction of a statute that it administers, for undermining separation of powers and the rule of law. The House of Representatives, not to be left behind, has passed the Separation of Powers Restoration Act of 2016, which commands courts to conduct de novo review of agency statutory constructions. The Chevron doctrine should indeed be abandoned, but not because it transfers tyrannical power to the executive. Over the last thirty years, an immense amount of confusing case law has evolved detailing whether and how to apply the Chevron two step—which may have one, two, three, or more steps. Viewed as a means to fine-tune deference, this effort has been largely a waste. Notwithstanding overheated charges, there is little reason to think that applying Chevron, as opposed to a supposedly tighter standard of review, such as Skidmore deference, is frequently outcome determinative in significant cases. Although Chevron, with monumental irony, fails as a deference doctrine, it should not be abandoned without replacement because it serves the important function of protecting agencies’ ability to change how they construe their enabling acts over time to reflect new learning. Rather than protect agency flexibility indirectly through the Chevron doctrine, however, it would be far better for courts to accomplish this end directly by limiting their opinions’ precedential force. More specifically, courts reviewing agency statutory constructions should, contra Chevron, pick the constructions they deem best. They should also, however, refrain from giving binding horizontal stare decisis force to their precedents when reviewing later agency efforts to adopt different statutory constructions. Instead, when a court confronts a choice between following its precedent or affirming an agency’s new construction, the court should adopt whichever one is better without stare decisis distorting the inquiry. This transformation of Chevron deference into a judicial duty to keep an open mind would not change many case outcomes, but it would greatly simplify an absurdly complex corner of administrative law.