Stephen J. Leacock (Barry University – Dwayne O. Andreas School of Law) has posted Chevron's Legacy, Justice Scalia's Two Enigmatic Dissents and His Return to the Fold in City of Arlington, Tex. V. F.C.C. (Catholic University Law Review, Vol. 64, No. 1, 2014) on SSRN. Here is the abstract:
Judicial friction in the course of deciding administrative law controversies can generate sparks, igniting law-advancing ideas that sometimes result in legal breakthroughs. The starting premise for resolving any administrative law controversy is that agencies are only authorized to make legally valid decisions where Congress has granted the particular agency such authority. Courts will reverse an agency's erroneous answer to a statutory interpretation question, even if the statute is one the agency administers. However, when a court determines that an agency is potentially empowered to issue a particular ruling, further judicial analysis and evaluation ensues, followed by the particular court's own determination and issuance of the court's judgment. Thus, prior to the conception of Chevron deference, when an agency concluded that a particular statute was beset by ambiguities or evinced gaps pertaining to a particular issue, the agency proceeded to make its ruling. If such rulings were challenged by an appeal to the courts, then the correctness and legal validity of such rulings were ultimately resolved at the discretion of the judiciary.
A two-step process typically occurred to determine administrative law controversies that involved an agency interpreting and applying statutes. First, agencies dealing with such issues would fashion interpretations that resolved the detected ambiguities or filled the perceived gaps that Congress left. Then, if the agency's interpretations and applications were disputed, the courts would decide their validity and whether they should be followed as U.S. law. However, the Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. decision created a significant shift in the U.S. Supreme Court's approach to administrative law deference jurisprudence with respect to agency decisions.
This article will discuss that shift, its consequences, and its impact on the judiciary's intellectual digestion of the substantive administrative law implications. This article also examines two widely discussed dissents by Justice Scalia in two Chevron deference cases. Part I addresses the role Chevron plays in judicial review of agency decisions. Part II examines Justice Scalia's dissent in United States v. Mead, followed by a discussion in Part III of his later dissent in National Cable & Telecommunications Ass'n v. Brand X Internet Services. Part IV evaluates the degree of harmony or conflict that materializes when Justice Scalia's two dissents are analyzed in light of the orthodox principles Chevron has sought to engender. Finally, Part V concludes that Chevron still has significance for administrative law determinations and that Justice Scalia may be returning to the fold.