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75 Duke L.J. Online 1 (2025-2026)

handle is hein.journals/duljo75 and id is 1 raw text is: Duke Law Journal Online VOLUME 75 SEPTEMBER 2025 RESTORING CHEVRONDEFERENCE BY STATUTE SCOTT DODSONt ABSTRACT This paper details a solution for legislatively restoring Chevron deference: amend the APA to direct lower federal courts to give deference to reasonable agency decisions but retain nondeferential judicial review by the U.S. Supreme Court. This solution restores most of the practical benefits of Chevron by giving agencies flexibility to implement congressional policy directives with the expertise they have acquired, by maintaining stability in administrative regulation, and by relieving lower federal courts of the burdens of nondeferential review. And retaining nondeferential judicial review in the Supreme Court will preserve the constitutional role of the judicial branch to say what the law is while supplying a backstop against agency overreach. INTRODUCTION The Administrative Procedure Act (APA), passed in 1946,1 provides a system for judicial review of agency action. In 1984, the U.S. Supreme Court unanimously held, in Chevron USA., Inc. v. National Resources Defense Council, Inc.,2 that federal courts reviewing agency actions under the APA should, when Congress does not speak directly to the regulated issue, uphold actions falling within a reasonable interpretation ofthe statute.3 Copyright © 2025 Scott Dodson T Horace O. Coil Chair in Litigation, Geoffrey C. Hazard Jr. Distinguished Professor of Law, and Director of the Center for Litigation and Courts, UC Law, San Francisco. Thanks to Dave Owen, Zach Price, Reuel Schiller, and Jodi Short for insightful conversations and comments. 1. Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.). 2. Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837 (1984). 3. Id. at 843.