This Note argues that cabinet agencies are better suited to receive Chevron deference than independent agencies because voters should desire such policy decisions to be made by those closest to electoral accountability, rather than unelected Article III judges with life-tenure. In other words, the judiciary should accept the countermajoritarian difficulty as fundamentally true and review cabinet agency decisions in light of Chevron deference. Part I examines the revolutionary decision of Chevron and its aftermath. Central to Part I is an inquiry into whether Chevron should be applied on a case-by-case or across-the-board basis, and whether Chevron has usurped the judiciary’s power to “say what the law is,” as cemented by the cornerstone constitutional law case of Marbury v. Madison. This Note contends that Chevron deference should be applied across-the-board, and that Chevron and Marbury are not at odds, but rather compatible precedents for the courts.
Part II defines what constitutes “cabinet” agencies in the scope of this discussion. Defining what constitutes a cabinet agency, in practice, is a difficult distinction. Part III turns to Chevron’s greater applicability (or inapplicability, as advanced by several critics) to cabinet agencies than independent agencies. Fundamental to Part III is both a theoretical and practical justification for why cabinet agencies are better suited for Chevron deference.
Andrew T. Bond,
Parting the Chevron Sea: An Argument for Chevron's Greater Applicability to Cabinet than Independent Agencies,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol90/iss1/9