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George Mason Law Review




In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s policymaking utility over the long haul, given certain institutional constraints that the Supreme Court justices must operate under. The model produces four possible futures of Chevron deference, with each possible future’s probability depending on how certain the Court is about the future allyship or opposition of the executive branch.

The essay unfolds as follows. Part I provides a brief political history of Chevron deference. Recent work in this vein has helped us to appreciate much better that the rise and decline of Chevron deference was politically contingent. Part II builds on this insight, formalizing a simple model that
can tell us under what political conditions something like Chevron deference is likely to arise, as well as when it is likely to fade or disappear completely. The model I offer differs from other accounts that proclaim Chevron’s “inevitability” in its parsimonious focus on political circumstance and
preference maximization, as well as in its forthright acknowledgment that Chevron may very well not be inevitable in any given moment if the right political circumstances for its erosion exist. Part III then engages with political science literature to argue that, while political conditions do not favor Chevron deference currently, in the long run they are almost certain to. Indeed, I will argue that regime theory teaches us that the conditions favoring Chevron deference are a natural default for our political system. Thus, if the model bears any relationship to the reality of what is really driving the Court’s construction of deference doctrines, we likely have not seen the last of Chevron deference.

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George Mason University School of Law

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