Thread by @ProfKentBarnett, Thanks, @lsolum, for recommending my latest draft article: How Chevron Deference Fits [...]

Thanks, @lsolum, for recommending my latest draft article: How Chevron Deference Fits Into Article III. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3686899

I do what those who argue that Chevron deference violates Art III surprisingly don't do: ask how Chevron fits within existing Article III doctrine. /1 https://twitter.com/lsolum/status/1303956783480799232

My article envisions a legal landscape in which the courts had never created Chevron.

But it asks if Congress sought to codify Chevron as we know it tomorrow, would it offend Article III?

I turn to existing doctrine to answer that question. /2

A deep study of Art III jurisprudence hobbles the blunderbuss Art III challenges to Chevron that Justices Thomas and Gorsuch and Prof. Philip Hamburger have advocated (where Chevron deference violates Art III in all applications) but leaves room for narrow attacks. /3

As @nicholas_bagley notes, Chevron nearly always applies to congressionally created public rights. Because Congress has the greater power to preclude review of at least public rights altogether under Art. III, it has the lesser power to require mere reasonableness review. /4

Nonetheless, Article III attacks are appropriate in rare circumstances: when Chevron applies either to criminal matters or to private rights that Congress creates. In both areas, the Court has suggested that de novo judicial review of legal interpretation is required. /5

Yet, even as to these narrow attacks, Art. III may permit Chevron in areas where Article III more jealously guards judicial prerogatives. For instance, Limiting de novo judicial review is hardly novel (habeas, qualified immunity, arbitration in agency proceedings, etc.). /6

The key takeaway is that a wholesale attack on Chevron under Article III should fail under current doctrine. Instead, Art. III skirmishes should be rare and occur only on limited battlefields--whether based on existing doctrine, new theories, or original understanding. /7

In traditional federal courts scholarly fashion, I am unashamedly approaching the question of Chevron’s
constitutionality as a doctrinal question. As much as academics enjoy theory and modifications, all judges (save those on SCOTUS) and parties must abide by precedent. /8

Even many hostile to Chevron would be concerned about doctrinal disruption that Chevron's unconstitutionality would cause. (Hi, CJ Roberts! Hi, Elena!) Its wholesale end would deeply destabilize Art III doctrine, yet Chevron's Art III critics have ignored this disruption. /9

Perhaps some would relish that disruption to rethink Art. III. But prior scholarship, including by @lsolum and @CassSunstein, @ilan_wurman, & Craig Green, suggest that Chevron is (likely) not unconstitutional either under varying interpretive theories or as an original matter./10

My purpose is not to rethink or re-conceptualize Art III doctrine. I've criticized it elsewhere. For reconceptualizing Chevron as a remedial doctrine, see @AndyHessick. Nor is my purpose to present an originalist argument. One can see @adityabamzai, Green, & Wurman for that. /11

Instead, my purpose is to engage in a complex and interesting (to me, at least) doctrinal inquiry. The inquiry is not only highly germane to most judicial audiences but also to academic ones to better situate their theoretical arguments. /12

I look forward to publishing my invited article in the Annual Review of Administrative Law with the @GWLawReview & presenting it at the fall meeting of @ABAAdLaw with the esteemed @khickmanjd, @chris_j_walker, and moderator D.C. Circuit Judge Gregory Katsas /end

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