Sunday, June 24, 2018
Check out the back-and-forth between Joshua Matz (at Take Care) and Jonathan Adler (at Volokh) on Justice Kennedy's broadside in his Pereira concurrence this week against Chevron deference to administrative interpretations. Justice Kennedy wrote separately--joined by no one, but citing Chevron-critical opinions by Chief Justice Roberts and Justices Thomas and Gorsuch--that
it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.