IANAL, but my understanding is that chevron interacts weirdly with the administrative procedures act.
So, one of the big problems with chevron deference is that when the laws says XYZ to be determined by agency ABC and agency ABC determines Q, but an election happens, the president gets up and makes a big populist speech, issues an executive order and now agency ABC determines R instead. This is a problem because under chevron + APA, the agency determination of both Q and R which may be contradictory both have the force of law and the courts were bound to simply defer to the interpretation.
You have agency making rules which have the force of law but the "law" is changing without the authorizing statute having changed and the courts' hands were tied by chevron. This is especially problematic when the rulemaking has associated criminal penalties.
Now, just because chevron deference no longer exists doesn't mean that agencies cannot make rules, but it does mean that if an agency makes a wild swing in rulemaking without a change in the underlying statute then its much easier to challenge that action. Ultimately, we want these things in the hands of the representative branch of the legislature anyway. One can dream anyway...
So, one of the big problems with chevron deference is that when the laws says XYZ to be determined by agency ABC and agency ABC determines Q, but an election happens, the president gets up and makes a big populist speech, issues an executive order and now agency ABC determines R instead. This is a problem because under chevron + APA, the agency determination of both Q and R which may be contradictory both have the force of law and the courts were bound to simply defer to the interpretation.
You have agency making rules which have the force of law but the "law" is changing without the authorizing statute having changed and the courts' hands were tied by chevron. This is especially problematic when the rulemaking has associated criminal penalties.
Now, just because chevron deference no longer exists doesn't mean that agencies cannot make rules, but it does mean that if an agency makes a wild swing in rulemaking without a change in the underlying statute then its much easier to challenge that action. Ultimately, we want these things in the hands of the representative branch of the legislature anyway. One can dream anyway...