"But if Chevron really supports the result below,
then it is no longer sufficient for this Court to ignore
Chevron. Whatever theoretical benefits might have
been perceived with Chevron when it was decided,
decades of practice have exposed its many flaws. To
begin with, Chevron “wrests from Courts the ultimate
interpretative authority to ‘say what the law is’” and
places it in the executive’s hands. Michigan, 576 U.S.
at 761 (Thomas, J., concurring). When a law is truly
unambiguous, there is little need for statutory
construction. The whole business of statutory
construction concerns statutory text that at least one
of the litigants perceives to be ambiguous. Thus, a
doctrine that defers to the executive at the first sign of
ambiguity is nothing short of an “abdication of the
judicial duty.” Gutierrez-Brizuela, 834 F.3d at 1152
(Gorsuch, J., concurring).
Moreover, precisely because the judiciary is
weakened under Chevron, the doctrine also
encourages the executive branch’s aggrandizement at
the expense of the judiciary, Congress, and the citizenry. It is no accident that the Code of Federal
Regulation has burgeoned during the Chevron era. It
is far easier to gin up ambiguity in a statute than it is
to run the gauntlet of bicameralism and presentment.
Compare Ramos v. Louisiana, 140 S.Ct. 1390, 1413
(2020) (Kavanaugh, J., concurring in part) (“Both by
design and as a matter of fact, enacting new
legislation is difficult.”), with Kent Barnett &
Christopher J. Walker, Chevron in the Circuit Courts,
116 Mich. L. Rev. 1, 33-34 (2017) (sampling over 1,000
cases and concluding that courts of appeals find
ambiguity at Chevron step one 70% of the time).
Worse still, it is far harder for Congress to enact new
legislation when one party or the other can rely on
their friends in the executive branch to fix the problem
without the hassle and accountability that comes with
actually legislating."
