De novo review crushes court efficiency

The most important clarification of step one is that courts must determine, in the exercise of independent judgment, that Congress has actually delegated authority to the agency to interpret the legal provision in question. This is implicit in  (2001), which held that Chevron deference only applies if the agency acts with the force of law in rendering its interpretation. An agency cannot act with the “force of law” unless it has been actually delegated authority to interpret the provision in question.

Step two should be clarified by holding that a “reasonable” interpretation is one that takes into account reliance interests created by past interpretations and is rendered in a format that allows for meaningful public participation, such as notice-and-comment rulemaking.

What will be the implications for previously decided cases if the court strikes down or weakens Chevron?

The Supreme Court has the institutional capacity to decide every case involving a disputed issue of law that comes before it de novo—without giving any weight to the views of the implementing agency. This “solution” to the criticisms of Chevron has an appealing simplicity and, as things stand, requires the Supreme Court to wade into only a handful of complex regulatory statutes each year. But the lower federal courts hear many hundreds of such cases for each one the Supreme Court takes on. If every court of appeals were required to apply de novo review to every question of law that arises in a regulatory context, the courts of appeals would be overwhelmed. It would almost certainly generate more circuit conflicts than we see today. So the lower courts need some kind of deference doctrine “out of a sheer instinct for self-preservation,” as  of Boston University School of Law . So, my biggest concern is that the Supreme Court will come up with a new doctrine that works for it but ignores the different circumstances of the lower courts.