Since the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, this judicial review has been highly deferential: courts must uphold agency interpretations of unclear laws as long as these interpretations are “reasonable.” But the Chevron doctrine faces backlash from constitutional scholars and, now, from Supreme Court justices who insist that courts, not administrative agencies, have the authority to say what the law is. Critics of the administrative state also charge that Chevron deference enables unaccountable bureaucratic power.
In The Chevron Doctrine: It's RIse and Fall and the Future of the Administrative State, Columbia University law professor Thomas Merrill reviews the history and immense consequences of the Chevron doctrine and suggests a way forward. Recognizing that Congress cannot help relying on agencies to carry out laws, Merrill rejects the notion of discarding the administrative state. Instead, he focuses on what should be the proper relationship between agencies and courts in interpreting laws, given the strengths and weaknesses of these institutions. Courts are better at enforcing the rule of law and constitutional values; agencies have more policy expertise and receive more public input. And, unlike courts, agencies are subject to at least some political discipline. The best solution, Merrill suggests, is not of the either–or variety. Neither executive agencies nor courts alone should pick up the slack of our increasingly ineffectual legislature.
One of the most cited legal scholars in the United States, Thomas Merrill teaches and writes about administrative, constitutional, and property law, among other topics. Merrill’s experience in the public and private sectors informs his pedagogy and research. After clerking for Chief Judge David L. Bazelon on the U.S. Court of Appeals for the D.C. Circuit and for Justice Harry A. Blackmun on the U.S. Supreme Court, Merrill was a deputy solicitor general of the U.S. Department of Justice and an associate at the firm of Sidley & Austin LLP, where he also served as counsel for more than 20 years.
He has written scholarly articles and several Supreme Court amicus briefs on when and how much weight courts should give administrative interpretations of law in different contexts.
He has co-authored (with Henry E. Smith) the casebooks Property: Principles and Policies and The Oxford Introductions to U.S. Law: Property. His seminal journal articles include “Optimal Standardization in the Law of Property: The Numerus Clausus Principle” on the role of information costs in the structure of property law and “The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central” about the role of public property rights in the development of the Chicago lakefront. For the 125th anniversary celebration of the 2nd U.S. Circuit Court of Appeals, Merrill delivered the annual Hands Lecture, and he spoke on “Learned Hand and Statutory Interpretation: Theory and Practice.” Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), his book (with Joseph Kearney) on the history of the Chicago Lakefront, was published in May 2021. Merrill is currently serving as a co-reporter for the American Law Institute’s Restatement (Fourth) of Property.
In addition to Columbia, Merrill has served on the faculties of Northwestern Law School and Yale Law School. He is a member of the American Law Institute and the American Academy of Arts and Sciences.