A Possible Limit on High Court 2005 Agency Deference Ruling

Abstract

Justice Thomas has recently argued that the Court's 2005 Brand X decision (that he authored) should be overruled. This short article considers a way that the Brand X doctrine might be limited or cabined if the Court does decide to revisit the precedent. The doctrine provides that a prior judicial precedent interpreting a statute will not prevent a subsequent agency interpretation from receiving Chevron deference unless the precedent finds the statute to be unambiguously contrary to the agency interpretation. This article analyzes a potential limitation briefly suggested by Justice Stevens in his Brand X concurrence: that the doctrine might have limited application when the relevant prior precedent emanates from the Supreme Court rather than a circuit court.