JUDICIAL DEFERENCE TO EXECUTIVE PRECEDENT

The Supreme Court's 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. contains a revolutionary analysis of the role of agencies and courts in interpreting statutes. Professor Merrill's Article surveys the actual practice of the Supreme Court since Chevron and shows that the Court does not in fact follow the framework of that case on any consistent basis. He argues that the divergence between theory and practice reflects unease with Chevron's implications for the balance of power between the branches of government and suggests the need for a new model. The last two sections of the Article set forth an alternative to Chevron-the executive precedent model. Under this conception, executive interpretations would be viewed as a form of precedent and would be treated by courts the same way as precedents of courts of concurrent jurisdiction: not legally binding, but entitled to a presumption of correctness, and given more or less deference depending on a variety of contextual factors. Professor Merrill argues that the executive precedent model would avoid Chevron's failings, provide an explanation for the multiple "deference" factors developed in the pre-Chevron era, and offer better incentives for all institutional actors.