The Conservative Case for Chevron Deference: Chapter 2

Posted on March 22, 2017 by Seth Jaffe

In January, I argued that conservative opposition to the Chevron doctrine seemed inconsistent with conservative ideology and I noted, at a practical level, that opposition to Chevron does not always yield the results conservative want.

gray wolf, Canis lupus, Gary Kramer, USFWS

Earlier this month, the Court of Appeals for the District of Columbia provided more evidence supporting my thesis.  The Court affirmed the decision of the Fish and Wildlife Service to delist the gray wolf as endangered in Wyoming, reversing a district court decision in so doing.  Part of the case turned on whether the FWS service could approve Wyoming’s management plan, even though the plan relied on non-regulatory provisions.  The Court of Appeals noted that the:

ESA provides no definition of “regulatory mechanisms,” and neither the district court nor appellees suggests why the Secretary’s interpretation is unreasonable.

Sounds like a case for Chevron deference to me – and it sounded that way to the Court as well.  When the Court combined Chevron deference to agency interpretation of the statutory language with traditional arbitrary and capricious review regarding the FWS’s scientific judgment – another area where deference to the agency is obviously not a left-wing plot – affirmance of the FWS delisting decision was the result.

Maybe I’ll make this a regular feature of this blog.  If I miss other cases making the conservative argument for Chevron, let me know.



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