• Show Notes

Dear Reader,

The Supreme Court recently heard oral argument in a pair of cases that will decide the fate of just about every aspect of life you can imagine. I wish this was hyperbole, but it is not. The Court is going to decide what happens when Congress passes a statute that is silent or ambiguous about a policy matter. Under a legal doctrine known as Chevron (named after the 1984 case that articulated the principle), when a federal agency is charged with administering such a statute, the federal courts defer to the agency’s interpretation, as long as it’s reasonable. 

An example from the oral argument in one of the two cases raising the issues this Term provides real-world context for how these issues come up. Justice Kagan asked the lawyer seeking to overrule the Chevron doctrine whether a new product on the market that is designed to promote healthy cholesterol levels is a “dietary supplement” or a “drug” under the relevant statutory framework. The lawyer argued that was purely a legal question for a court to decide, with no deference to the Food and Drug Administration. 

If that seems insane to you, you should want to see the Chevron doctrine survive. The doctrine is based on the notion that, as between unelected federal judges with no policy expertise, and a politically-accountable agency that Congress created with the very purpose of issuing binding rules and decisions in a particular area, it is the agency’s reasonable view that should prevail when a statute is not clear. The default assumption is that in these circumstances, Congress is implicitly delegating that authority to the agency.