Immigration Article of the Day: Loud and Soft Anti-Chevron Decisions by Michael Kagan
Loud and Soft Anti-Chevron Decisions by Michael Kagan
This essay proposes a methodology for interpreting the Supreme Court’s long-standing inconsistency in the application of the Chevron doctrine. Developing such an approach is important because this central, canonical doctrine in administrative law is entering a period of uncertainty, after long seeming to enjoy consensus support on the Court. In retrospect, it makes sense to view the many cases in which the Court failed to apply Chevron consistently as signals of underlying doctrinal doubt. However, to interpret these soft anti-Chevron decisions requires a careful methodology, because sometimes justices are simply being unpredictable and idiosyncratic. However, where clear patterns can be discerned, and where these patterns can be explained by a coherent doctrinal theory, there is good reason to use them as a foundation for refining the Chevron doctrine.
KJ