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If John Marshall Is Right, Chevron Is Wrong!

July 28, 2023

[The following is an abridged transcript of a speech given by Thomas Dupree on July 13, 2023, during the Hamburger-Frankfurter Debate at the New Civil Liberties Alliance. Mr. Dupree was assigned the ‘Chevron must be overturned!’ side of the debate.]

In Marbury v. Madison, Chief Justice John Marshall famously stated that “[i]t is emphatically the province and [the] duty of the judicial department to say what the law is.” And I submit to you that if John Marshall is right, Chevron is wrong!

Chevron, you see, gets it exactly backward. … The courts listen to what the agency’s interpretation of the law is, and they must accept it unless it is deemed unreasonable. So, the Chevron doctrine essentially turns one of the first principles of our constitutional structure on its head. …

Under Chevron … a court must defer to an agency’s reasonable construction of a statute that it administers. The tie goes to the agency. It’s a peculiar outcome in a nation supposedly founded on individual liberty and restraints on government, that when the law is ambiguous, the people don’t win. The government wins. …

The first reason Chevron should be overruled is because it improperly transfers power that is properly vested in the Article III Judiciary to the Article II Executive Branch and thereby offends the separation of powers.

The second reason that Chevron should be overruled is that it also usurps the legislative power properly vested in the Congress of the United States. … Look, the Framers made the law-making process intentionally difficult. Presidents who wish to enact their agenda into law have to run a harrowing gauntlet of bicameralism and presentment. …

The idea that we as a nation are better off by allowing these unelected, faceless bureaucrats to make the law of the United States simply doesn’t withstand scrutiny. We are not better off by entrusting our governance to bureaucrats who can effectively make law without the democratic imprimatur of being presented to Congress, voted on by the majority of both houses, and then signed into law by the democratically elected president. There is an inherent legitimacy that comes when laws are validated in that way—a legitimacy that is wholly absent when you allow law to be made by agency officials.

So let me finally address one other point: People say, “Well, look, maybe Congress actually intended agencies to fill gaps in the law.” And so seen through that prism, Chevron, in fact, doesn’t contravene congressional intent. In fact, it vindicates or facilitates that Congress actually really wanted us to be doing this.

I’m not really sure that’s true, and I would also submit that if you look at Chevron’s practical application over the decades during which it has been in operation, what you’ll find is dramatically differing approaches by federal judges, the best and brightest lights in our federal judiciary, who cannot agree, for example, on the threshold question of when a statute is sufficiently ambiguous to trigger Chevron deference.

There have been studies that show that when presented with that threshold question, the substantial majority of judges will simply throw up their hands, deem a statute ambiguous, and defer to and adopt the agency’s interpretation. …

That’s not the task of a judge. You need to go further. You need to figure out if the statute has a meaning, and, if so, you have to apply that meaning.

I think we will continue to see Chevron work its evil through our nation. I think we will continue to see Chevron really incite and, frankly, bless the federal bureaucracies’ constant attempts to expand their jurisdiction into areas that are properly governed either by private arrangement or through the democratically enacted process of lawmaking.

So, for all of those reasons, I respectfully submit to you this evening that Chevron‘s time has come, and it must be overruled. Thank you.

Thomas H. Dupree Jr. is Co-Partner in Charge of the Washington, DC office of Gibson, Dunn & Crutcher, co-chair of the firm’s nationwide Appellate and Constitutional Law practice group, and a member of the firm’s litigation department.

Mr. Dupree is an experienced trial and appellate advocate. He has argued more than 100 appeals in the federal courts, including in all thirteen circuits as well as the United States Supreme Court.  Mr. Dupree previously served in the United States Department of Justice as Principal Deputy Assistant Attorney General where, as the division’s second-in-command, he oversaw the more than 900 lawyers in the Civil Appellate, Commercial, Federal Programs and Torts branches, as well as the Office of Immigration Litigation and the Office of Consumer Litigation.