Reconsidering judicial deference to agency interpretations

Last year, in Michigan v. EPA, Justice Clarence Thomas questioned the constitutionality of Chevron deference. Writing separately in Michigan v. EPA, Thomas suggested that the Chevron doctrine, under which courts defer to statutory interpretations offered by administrative agencies, raises serious constitutional questions.

While Thomas's critique of Chevron may have been particularly forceful, he is not alone in expressing skepticism about the Chevron doctrine as it is applied in federal courts. Other justices, including Chief Justice John Roberts and the late justice Antonin Scalia, have also raised concerns about the breadth and application of Chevron and some of its progeny, such as so-called Auer/Seminole Rock deference, to agency interpretations of their own regulations. Many academics of varying ideological stripes have posed similar questions and, just last week, a House subcommittee held a hearing on legislation that would do away with Chevron deference in its entirety.

Next week, on June 2, the Center for the Study of the Administrative State at the George Mason University School of Law (a.k.a. the Antonin Scalia Law School) is hosting a conference on "Revisiting Judicial Deference: History, Structure and Accountability." Speakers include NYU's Catherine Sharkey, Boalt Hall's Daniel Farber, U-Va.'s John Harrison, former White House counsel C. Boyden Gray, former OIRA director Chris DeMuth and BU's Jack Beermann, among many others (myself included). The panels will feature a nice mix of academics and practitioners who study and work with these issues. Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit will deliver a lunchtime keynote address on "Justice Scalia and Deference."

The full schedule and registration information is here.