Revisiting Congressional Delegation of Interpretive Primacy as the Foundation for Chevron Deference

Although congressional delegation is the rationale used most often to justify the Chevron doctrine, most scholars who have written about this justification have recognized that it is a fiction, albeit, they claim, a useful one. In "Chevron's Foundation," I proposed an alternative foundation for the Chevron doctrine--a judicial self-limitation justification for Chevron deference--based on an implicit understanding of Article III that courts should not resolve cases by making policy choices where alternative means for deciding these cases exists. In this essay, I first revisit my original critique of the delegation rationale and explicitly respond to the arguments for that foundation that were published after my prior work on Chevron. Although I think that these arguments muddy the waters regarding congressional delegation by providing evidence that there are at least some cases in which Congress purposely means to grant agencies interpretive primacy, I conclude that this is still unlikely to be true with respect to most statutory ambiguities, and hence that in most cases such delegation is still a fiction. I then proceed to consider how the rejection of congressional intent to delegate interpretive primacy to agencies bears on the judicial developments in the application of Chevron that post-date my prior work.