Toward a Context-Specific Chevron Deference

Abstract

With Justice Scalia’s passing, the Supreme Court is unlikely to consider overturning the administrative law doctrines affording deference to agency statutory interpretations (Chevron deference) or agency regulatory interpretations (Auer deference). Without Justice Scalia on the Court, however, a different kind of narrowing becomes more likely. The Court may well embrace Chief Justice Roberts’ context-specific Chevron doctrine, as articulated in his dissent in City of Arlington and his opinion for the Court in King v. Burwell. This Essay, which is part of a symposium on the future of the administrative state, explores the Chief Justice’s more-limited approach to Chevron deference and details how recent empirical studies of congressional drafters and agency rule drafters may well provide some support for a context-specific Chevron doctrine (as well as King’s major questions doctrine). Although the wisdom of such a reform lies outside the scope of this Essay, litigants and scholars should pay more attention to the Chief Justice’s dissent in City of Arlington as it may well soon become the law of the land.