Beyond Marbury: the executive's power to say what the law is.(Symposium on Executive Power)

Yale Law Journal, July, 2006 by Sunstein, Cass R.

Under Marbury v. Madison, it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, the most cited case in modern public law. Chevron is not merely a counter-Marbury for the executive branch, but also the Erie Railroad Co. v. Tompkins of the last half-century. It reflects a salutary appreciation of the fact that the law's meaning is not a "brooding omnipresence in the sky"--and that the executive, with its comparative expertise and accountability, is in the best position to make the judgments of policy and principle on which resolution of statutory ambiguities often...

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