Thursday, March 13, 2014
Ron Etermi, University of Connecticut School of Law, is publishing To Defer or Not to Defer: Why Chief Justice Roberts Got it Right in City of Arlington v. FCC in the Penn State Law Review. Here is the abstract.
As we approach the thirtieth anniversary of the landmark decision of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., we are reminded of its continued vitality in modern administrative law, as well as the polarizing effect it has on judges, commentators, and practitioners alike. While most applaud the Chevron decision for introducing simplicity to the deference rules, others have called for terminating the doctrine altogether. Not startling, then, is the Supreme Court’s recent decision in City of Arlington v. FCC, which presented a fractured decision concerning the applicability of the Chevron framework.
This Essay has three primary tasks. The first, which is the subject of Part II, is to synthesize cogently the law regarding judicial deference to agency interpretations of statutory ambiguities. The second task, which is the subject of Part III, is to provide an analysis of each of the opinions in the City of Arlington decision. Finally, in Part IV, I conclude that Chief Justice Roberts’ dissenting opinion offers a more realistic approach than that offered by the majority that is also consistent with the Court’s precedent, and more faithful to the separation of powers doctrine.
Download the article from SSRN at the link.