Symposium: A Discussion on the Nondelegation and Chevron Deference Doctrines
It is my honor to introduce Chapman Law Review’s third Issue of Volume Twenty-Four. This Issue consists of submissions for our 2021 Chapman Law Review Symposium: “A Discussion on the Nondelegation and Chevron Deference Doctrines.” This year’s Symposium was sponsored by Chapman University Dale E. Fowler School of Law’s Constitutional Jurisprudence Clinic’s Separation of Powers Project.
This Issue opens with an Article by Mrs. Bethany Ring, a graduate of the Chapman University Dale E. Fowler School of Law and previous member of the Chapman Law Review. The Article presents research Mrs. Ring conducted in an effort to fill an empirical study void of the district court applications of the Chevron deference doctrine. Her Article concludes that for cases which apply the Chevron deference two-step analysis, the levels of rigor with which each step is applied varies significantly within the district courts themselves, from no discussion to full discussion, and equally varies among the respective circuit court groupings.
The next Article in this Issue is written by Professor Anthony Caso, a Chapman University Dale E. Fowler School of Law professor. Professor Caso authored this Article to assist advocates who find themselves fighting against Chevron deference. After a brief discussion of how Chevron deference works, Professor Caso’s Article examines the problem of separation of powers that is inherent in the Chevron deference doctrine. His Article then lays out how to attack the Chevron deference doctrine when it is asserted as a defense by agencies.
Esteemed constitutional law scholar, Professor Richard Epstein is the author of the next Article in this Issue. Professor Epstein’s Article lays out the reasons why legislators, judges, lawyers, laypersons, and even scholars should care about the nondelegation doctrine. His Article aims to fill gaps in the current literature with a functional analysis of the nondelegation doctrine that helps explain where it should have teeth and where it should not. The Article offers a brief account of the evolution of the nondelegation doctrine, develops an analytical model to explain why and how the doctrine should be used, explains how this model works in the context of private business contexts, and circles back from the private sector to the public sector in order to apply this model to help explain a broad range of delegation cases.
The last Article in this Issue is written by Professor Kurt Eggert, a Chapman University Dale E. Fowler School of Law professor. Professor Eggert’s Article uses the nondelegation debate as a lens to see whether originalism as it is currently practiced is a useful or dangerous tool of constitutional interpretation. His Article builds on existing criticisms of originalism, recounts the origins of originalism, its initial emphasis on judicial restraint and avoidance of interfering in legislative policymaking, and examines how originalism works in practice in justifying and discussing the nondelegation doctrine.
In an effort to promote the safety of symposium participants, and follow state guidelines, the Chapman Law Review triumphed in successfully hosting its first virtual Symposium. We would not have been able to do so without the continued support of the members of the administration and faculty that made the publication of this Issue possible, including: Dean of Chapman University Dale E. Fowler School of Law, Matthew Parlow; our faculty advisor, Professor Celestine Richards McConville; and our faculty advisory committee members, Professor Deepa Badrinarayana, Professor Ernesto Hernandez, Professor Kenneth Stahl, Professor Richard Redding, and Professor Lan Cao. A special thank you goes to Assistant Dean of Student Affairs Nidhi Vogt, Candace Rim, Kelly Farano, and PJ Perez for their advice and guidance in planning the Chapman Law Review Symposium, and to Professors Kurt Eggert and Thomas Campbell for moderating the Symposium panels. The Chapman Law Review is grateful for the Constitutional Jurisprudence Clinic’s sponsoring of the Symposium and for Professor Anthony Caso, who was instrumental in selecting the topic for this year’s Symposium, acquiring exceptional speakers for our panels, and participating in the “Chevron Deference Doctrine” panel.
I want to also express my sincerest gratitude to our Senior Symposium Editor, Collin Craig, who deserves applause for his work and dedication to this incredibly successful Symposium. Mr. Craig displayed great commitment, efficiency, and resourcefulness in moving toward non-traditional, virtual Symposium events when faced with the restrictions of COVID-19 and ensured the success of this year’s Symposium. Last but certainly not least, I thank the staff of the 2020–2021 Chapman Law Review. Your remarkable, committed, and tireless work was paramount to the publication of this Volume.
As this Issue closes out Chapman Law Review’s Volume Twenty-Four, I want to convey a final thank you to those who supported me and the staff of the Chapman Law Review during this difficult and unconventional year. To Ariel Romero, our brilliant Managing Editor, I would not have been able to do anything without you. You are truly the embodiment of perseverance, steadfastness, and grace—and it has truly been an honor working alongside you.
Delegation of Powers: A Historical and Functional Analysis
Richard A. Epstein