Loud and Soft Video
Judicial Deference:
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"Loud and Soft Anti-Chevron Decisions" by Michael Kagan
Transcript:
This video is about the article “Loud and Soft Anti-Chevron Decisions” by Michael Kagan. Kagan argues that changing views around Chevron deference point to its uncertain future and potential for change. According to the article, Chevron deference is considered to be the canonical deference doctrine. It grew out of lower court decisions that cited the 1984 case Chevron v. Natural Resources Defense Council as a major change in prior administrative law.
The article claims that the development of Chevron deference through lower court decisions left ambiguities in the doctrine itself.
The consensus around Chevron deference is weakening, according to the article, and the doctrine faces an uncertain future. For instance, Justices Clarence Thomas and Neil Gorsuch have both called Chevron unconstitutional. Justices John Roberts, Samuel Alito, and Anthony Kennedy supported limits on Chevron deference in the 2013 case City of Arlington v. FCC. And in a major shift, a majority of justices agreed in the 2015 case King v. Burwell that Chevron deference is inappropriate for deciding matters of “deep economic and political significance.” In fact, all nine justices have signed at least one opinion holding that Chevron deference doesn’t apply to what would otherwise have been considered to be a textbook case.
After examining the uncertain future of Chevron deference, the article then looks to inconsistent applications of the doctrine.In loud Chevron decisions, according to the article, judges either explicitly say Chevron deference should apply or openly criticize the doctrine. In soft Chevron decisions, the court does not apply Chevron in otherwise textbook situations. Silent Chevron decisions do not mention the doctrine where it would be relevant, and impotent Chevron decisions mention the case’s potential relevance, but then move on.
The article concludes that inconsistent applications of Chevron deference, together with changing views among Supreme Court justices, point to underlying problems with the doctrine that could lead to change in the future.
