Although Chevron has drawn extensive scholarship examining its doctrinal origins,17 evolution,18 and impact,19 this is not one of those inquiries. Instead, this Comment seeks to address some of the circumstances and rationale motivating certain people behind Chevron, and therefore the doctrine and its impact will be discussed in short form. Accordingly, Part II of this Comment will use Anne Gorsuch’s service at the EPA as a lens through which to view the conservative revolution that occurred before and during the Reagan years, with an eye toward a subtle change in thinking from previous generations regarding agency regulations. Part III of this Comment will expand on that change, showing how a parallel shift in jurisprudence, led in part by Antonin Scalia, enabled the Reagan administration to execute traditionally conservative policy goals when it would have otherwise been impeded by the Court. Also, in Part III, this Comment will grapple with the rationales of the proponents of interpretational deference, drawing parallels from Roman, English, and American history to better understand the arguments within a broad time frame.
Part IV turns at last to Gorsuch’s view of Chevron deference, probing both his ideological upbringing and his Tenth Circuit jurisprudence to understand how his view of interpretational deference differs from Justice Scalia’s. Finally, Part V draws from Gorsuch’s split with Justice Scalia over Chevron to contemplate reasons for the current trend among many conservatives to disfavor the doctrine, namely its frustration of due process, harm to small business, and disruption of the tripartite balance of power. To close, this Comment argues that, should Chevron fall, strictly de novo judicial review of agency interpretations of law may ultimately force Congress to reconsider the quantum of power delegated to agencies.
From Gorsuch to Gorsuch: Family Reformation on Agency Power,
Fla. A&M U. L. Rev.
Available at: https://commons.law.famu.edu/famulawreview/vol13/iss1/4