"Thus, as
Justice Gorsuch recently emphasized: “No measure of
silence (on this Court’s part) and no number of
separate writings (on my part and so many others) will
protect [Americans]. At this late hour, the whole
[Chevron] project deserves a tombstone no one can
miss.” Buffington v. McDonough, 2022 WL 16726027,
at *7 (U.S. Nov. 7, 2022) (Gorsuch, J., dissenting from
the denial of certiorari)."
-------
"Courts and
litigants alike have an undeniable interest in whether
agencies can force them to fund enforcement efforts
and on the current state of Chevron, which applies to
countless statutes involving the entire alphabet soup
of federal agencies. Virtually every agency has some
residual “necessary and appropriate” clause akin to
the one invoked here. “[I]n the field of federal
administrative law, Congress has enacted numerous
statutes authorizing agency action that is ‘necessary
and appropriate’ to a certain end.” Al-Bihani v.
Obama, 619 F.3d 1, 25 n.11 (D.C. Cir. 2010)
(Kavanaugh, J., concurring in the denial of rehearing
en banc). Accordingly, if agencies have carte blanche
to leverage that language to engage in fundraising
whenever congressionally appropriated funds run
short and get away with it under Chevron, the threat
to the separation of powers will grow only more
pronounced."
"Chevron may have “fallen into
desuetude” in some circles, but that has not occurred
in the D.C. Circuit. Buffington, 2022 WL 16726027, at
*7 (Gorsuch, J., dissenting from the denial of
certiorari); see Abbe R. Gluck & Richard A. Posner,
Statutory Interpretation on the Bench: A Survey of
Forty-Two Judges on the Federal Courts of Appeals,
131 Harv. L. Rev. 1298, 1301-02 (2018) (surveying 42
federal appellate judges and explaining that “[m]ost of
them are not fans of Chevron, with the significant
exception of the judges we interviewed from the D.C.
Circuit, the court that hears the most Chevron cases”)."
