A Possible Limit On High Court 2005 Agency Deference Ruling

Law360 (March 6, 2020, 4:22 PM EST) -- Recently, Justice Clarence Thomas, the author of the U.S. Supreme Court’s 2005 decision in National Cable & Telecommunications Association v. Brand X Internet Services,[1] argued that the decision should be overruled or at least reconsidered.[2]

The Brand X decision held that an agency interpretation of a statute can be eligible for Chevron[3] deference despite a prior conflicting federal appellate court precedent, so long as the prior decision did not hold that the statute clearly or unambiguously precluded the agency interpretation.[4]

This situation is reminiscent of that which occurred regarding another Supreme Court decision on deference to administrative agencies, Auer v. Robbins,[5]...

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