Thomas Merrill’s book, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State, is timely in several ways. First, it arrives immediately after he was named one of the fifty most important legal scholars of all time. Second, it tells the story of the Supreme Court’s 1984 opinion in Chevron v. NRDC, the most frequently cited administrative law opinion in history, at a time when the Chevron doctrine is in severe jeopardy. Third, Merrill uses the history of the Chevron doctrine as a lens through which he explains and defends the administrative state at a time when it is under attack as illegitimate and unconstitutional.
Merrill begins by describing the Chevron opinion and its effects. The opinion was long, complicated, and nuanced, but many circuit courts ignored the rest of the opinion and applied only the famous two-part test that the Court announced:
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
As interpreted and applied by circuit courts, the Chevron test had the effect of increasing by ten to fifteen per cent the proportion of agency actions that courts upheld.1 More importantly, it encouraged agencies to stretch their statutory authority in ways that allowed them to take actions with major effects with greater confidence that courts would uphold the actions. (Pp. 3-4.)
After Merrill describes the Chevron opinion and its direct effects, he identifies and describes four values that he uses throughout the book to evaluate the Chevron doctrine as it evolved in substance and scope. The four are rule of law values, constitutional values, accountability values, and the quest for better agency decisions. Each value is complicated and multi-faceted. Merrill explains why the original version of the Chevron doctrine, as it was understood and applied by circuit courts, furthered some of the four values but ignored or discounted others.
He then devotes one chapter each to detailed descriptions of the major changes in the doctrine that the Supreme Court has made and to the ways in which each of those changes furthered each of the four values that he identified and discussed at the beginning of the book. He concludes his analysis of the 35 years of opinions in which the Supreme Court has clarified and qualified the Chevron test on an optimistic note:
Notwithstanding all these qualifications and corrections, the central lesson of the Chevron opinion—and of the entire era of jurisprudence that it eventually spawned—is that the agency, rather than the reviewing court, is the preferred institution for filling in the space that Congress has left for future interpretation in the statute under which the agency operates. This, as Chevron explained, is because the agency is more accountable to elected officials than the reviewing court, and the agency has more expertise in understanding the way the statute operates in its contemporary incarnation. (Pp. 243-45.)
Merrill then turns to what he characterizes as the important question that remains: “whether the mandate to accept agency interpretations that fall within the discretionary space left by Congress can be structured in such a way as to improve the quality of agency interpretations designed to fill this space.” He answers that question with a twelve-page discussion of the virtues of the notice and comment process.
Merrill concludes the book by describing ways in which the Court might restate the Chevron doctrine that would further the four values that he identifies at the beginning of the book. As restated, the doctrine would consist of the original two steps, restated to reflect the many qualifications that the Court has added, plus a third step—whether the agency has adopted the interpretation through use of the notice and comment process. If the agency did not use the notice and comment process, the agency interpretation should be entitled only to the court’s respectful consideration, with emphasis on the persuasiveness of the agency’s reasoning and on whether the interpretation comports with settled expectations created by prior interpretations. Like Aaron Nielson and Kristin Hickman, Merrill would not accord deference to interpretations that are announced in adjudications. (P. 264.)
Thus, Merrill’s preferred review regime would consist of two tests. The first can be summarized as a version of the Chevron test that reflects the many qualifications that the Court referred to in its 2019 opinion in Kisor v. Wilkie. Courts would apply that test only to statutory interpretations that agencies develop through use of the notice and comment process. The second test is a version of the test that the Court announced in its 1944 opinion in Skidmore v. Swift & Co. Courts would apply it to all agency interpretations that were not developed through use of the notice and comment process.
This book is a must-read for all administrative law scholars. Even if you do not agree with Merrill’s conclusions, you will learn a lot from the careful ways in which he explains and supports his conclusions.