By Sam Kalen
Walt Disney's movie "Chicken Little" reminds us that we should be cautious before proclaiming the end is near. But it also teaches that we should not ignore warning signs of a fragile sky. Thus when Justice Scalia warned a few years back that "it is indeed a wonderful new world that the Court creates, one full of promise for administrative-law professors in need of tenure articles and, of course, for litigators," 2 perhaps it was a signal that we should pause and reflect on whether something serious is happening or whether Justice Scalia was simply issuing another quixotic opinion. This Article suggests that, hyperbole aside, there is indeed something noteworthy looming on the horizon. But it is different than what Justice Scalia portends - he was concerned that the Court had created yet another nuance in administrative law by holding that Chevron deference would apply even if an agency's interpretation of an ambiguous statutory provision is different than a prior interpretation upheld by a court. Allowing an executive agency the ability to proffer a new interpretation, he believed, would permit an Article III court's decision to be subverted by a subsequent executive branch decision. But he missed the underlying point. The nascent world that threatens to emerge absent greater doctrinal clarity in the field of administrative law is one where interpretations increasingly occur in informal documents, and yet the continued flexibility that agencies enjoy when issuing policy or interpretive guidance documents - such as, agency manuals, memoranda, technical documents...
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The above is an excerpt of the introduction to an article that originally appeared in 35 Ecology Law Quarterly 657. Access the full article here.