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Christopher J. Walker Subscribe

Christopher J. Walker is a law professor at The Ohio State University Moritz College of Law and a regular blogger at the Yale Journal on Regulation.

April 3, 2018|Administrative Law, Chevron deference, Federalist Society, Skidmore deference, Whistleblower effects

The Federalist Society’s Chevron Deference Dilemma

by Christopher J. Walker|

Will eliminating Chevron deference result in increased partisan judicial review of agency interpretations of law?

August 25, 2016|Chevron deference, Gutierrez-Brizuela v. Burch, Justice Clarence Thomas, Michigan v. Environmental Protection Agency, Separation of Powers Restoration Act

Do Judicial Deference Doctrines Actually Matter?

by Christopher J. Walker|

Adobe Stock Images

A central principle of modern administrative law is that federal agencies—not the courts—are the primary interpreters of ambiguous federal statutes that Congress has charged the agencies to administer. The Supreme Court crystallized this deference doctrine in its 1984 Chevron decision, though some variation had existed since the 1940s (and maybe even longer, or perhaps not). In 2005, Justice Thomas framed Chevron’s practical significance:

If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.

That opinion, National Cable and Telecommunications Association v. Brand X Internet Services, upheld and expanded the doctrine of Chevron deference. But in recent years Justice Thomas has led the way in expressing skepticism about it.

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February 8, 2016|

(Incrementally) Toward a More Libertarian Bureaucracy

by Christopher J. Walker|

In response to: A Modest Proposal for Reforming the Administrative State

The ambitious proposal reconsidering the foundations of the modern regulatory state that Ilan Wurman outlines in his thoughtful Liberty Forum essay is not an outlier. There seems to be a growing call—primarily among conservatives and libertarians—to return to first principles and rein in the administrative state. And I’m not just referring to Philip Hamburger’s condemnation of the administrative state as unlawful. Just last year, the Chief Justice’s opinion for the Supreme Court in King v. Burwell reinvigorated the “major questions” doctrine, providing for plenary review of agency statutory interpretations that implicate questions of “deep economic and political significance.” In Michigan v.…

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More Responses

An Administrative Fairy Tale

by Jonathan H. Adler

Most everyone is familiar with the Hans Christian Andersen tale in which only a child is willing to pronounce what everyone knows: The emperor’s clothes are no clothes at all. As the emperor marches through town, he is as naked as the day he was born. His magnificent new outfit is a fiction, but a…

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Congress-ification of Agency Rulemaking

by Andy Grewal

In his provocative Liberty Forum essay, Ilan Wurman proposes a novel solution to the explosive growth of the administrative state. Constitutional conservatives, rather than pursuing their dream remedy (that is, the Supreme Court overturning or severely limiting its prior holdings on the non-delegation doctrine), should accept that agencies will inevitably exercise a blend of executive,…

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Ilan Wurman Replies to His Critics

by Ilan Wurman

I would very much like to thank professors Chris Walker, Jonathan Adler, and Andy Grewal for their thoughtful and incisive responses to my “modest” (or perhaps not so modest) proposal for reforming the administrative state. Much of their criticisms, I think, will be addressed in the forthcoming, fuller accounts of this idea, but much of…

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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