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Adrian Vermeule, The Deference Dilemma, SSRN (2023).

Abstract: The Supreme Court faces a real dilemma in the Loper Bright case, in which the Court will explicitly consider whether to overrule the Chevron decision. The dilemma is decades in the making, and arises from the interplay of large structural forces, between which the Court is uneasily positioned. On the one hand, the background conditions of the American administrative state, which produce an array of broad and vague delegations to administrative agencies on highly technical subjects, tend to limit the scope of judicial review of agency legal interpretations. On the other hand, the fundamental importance of judicial review of agency legal authority as a legitimating mechanism for the administrative state presses judges towards plenary review of agency legal interpretations. The combination of these two large-scale pressures creates the deference dilemma. It threatens to make plenary judicial review of agency legal interpretations both intolerable and indispensable. In what follows, I explain this basic problem, explore its causes and sources, and speculate about some possible futures for the Chevron framework in particular and the deference dilemma in general. The most interesting possibility is an express overruling of Chevron, combined however with a reframing of “deference” that preserves much of the content of Chevron under a different label. On this reframing, the overruling majority will say — along lines indicated by Henry Monaghan decades ago — that de novo or plenary judicial review of agency legal interpretations is required by legal sources (either by the Administrative Procedure Act, by Article III, or both), yet will also say that de novo interpretation might of course itself yield the conclusion that, in a given statute, Congress has delegated primary responsibility to agencies to fill in statutory gaps or ambiguities.