Publication Date

2025

Journal

Fordham Environmental Law Review

Abstract

It is a banal truism that judicial deference to agency decisionmaking enables the executive branch to pursue its agenda, whatever that agenda may be. That was obvious to all in the early years of the Chevron decision, which was greeted enthusiastically on the right and skeptically on the left. In Chevron itself, and for a while thereafter, deference advanced the Reagan deregulatory program. Over the years, a subtler conclusion gained consensus: overall and in the long haul, judicial deference is likely to have a net pro-regulatory impact. Hence the right’s hardened opposition to Chevron leading up to its demise. But the banal truism is often correct. It is a nice irony that the Supreme Court abandoned Chevron just in time to make it harder (though obviously not impossible) for the Trump administration to unravel existing regulatory regimes.

This Article reviews these dynamics through a thought experiment. It imagines a world in which the deference-denying Bumpers Amendment had been enacted. That would have meant that Chevron came out the other way, with significant regulatory consequences. It is an interesting alternative history because it resembles the current day. While 2025 is like 1981 in many ways, one major difference is that the Reagan administration was deregulating against the background of the rejection of the Bumpers Amendment and the newly minted pro-deference Chevron doctrine. The Trump administration is deregulating against the background of Loper Bright Enterprises, Inc. v. Raimondo and the Supreme Court’s insistence that judges read statutes for themselves. It would be naïve to predict that this means the Trump project is in trouble; it may make little difference. But it will make some.

Volume

36

First Page

180

Last Page

217

Publisher

Fordham University School of Law

Keywords

Chevron, Loper Bright, Bumpers Amendment, deference, showerheads, rulemaking

Disciplines

Administrative Law | Environmental Law | Law

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