Bullettin n. 1/2011
June 2011
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Pollack Michael C.
    Chevron's Regrets: The Persistent Vitality of the Nondelegation Doctrine
    in New York University Law Review , Vol. 86, n. 1 ,  2011 ,  316-350
    Since the Chevron decision in 1984, courts have extended to administrative agencies a high level of deference when those agencies reasonably interpret ambiguous statutes, reasoning that agencies have more technical expertise and public accountability than courts. However, when the agency’s interpretation implicates a significant policy choice, courts do not always defer. At times, they rely on principles of non delegation to rule against the agency interpretation and require that choices be made by Congress instead. Chevron makes no explicit exception for significant policy choices, but in cases like MCI v. AT&T and FDA v. Brown & Williamson, the Supreme Court has manipulated the application of the Chevron test to find statutory clarity and preclude deference to agencies for exactly this reason. Led by litigants who highlighted the separation of powers implications of the agency’s interpretations, the Court has suggested both that the principles of non delegation remain a constitutional constraint and that alluding to them, even without resort to some canon of interpretation, is a viable litigation strategy. This Note exposes and defends the persistent, if unspoken, role played by the principles of non delegation in the jurisprudence of the administrative state in an era of Chevron deference. It draws a strategic and doctrinal framework from which to challenge agencies’ statutory interpretations and presents a live circuit split involving the authority of the Food and Drug Administration to criminalize certain failures to maintain research records that is a ripe opportunity for applying that framework. Full text available at: http://www.law.nyu.edu/ecm_dlv4/groups/public/@nyu_law_website__journals__law_review/documents/documents/ecm_pro_068678.pdf
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