THE FLAWS OF CHEVRON DEFERENCE

The rationale for Chevron's judge-made rule of deference is that Congress, by enacting an ambiguous provision, implicitly signals an intent to delegate power to the agency to resolve the ambiguity.10 That rationale, however, is acknowledged and accepted as a fiction,11 and it is in the teeth of Section 706 of the Administrative Procedure Act, as Professor Nielson has said.12 The Court also has been schizophrenic about the kind of power-legislative or judicial-that Congress has supposedly delegated through ambiguous statutes.13 Chevron itself suggests both answers. [...]the nondelegation doctrine has lain dormant since the 1930s.35 The Supreme Court's repeated approval of a very broad delegation of legislative power to administrative agencies is primarily responsible for the extraordinarily powerful one-branch government that we have today, called the Administrative State. "37 Burwell concerned whether tax credits are available under the Affordable Care Act (ACA) to individuals who acquired their health insurance from a federal exchange, notwithstanding the fact that the plain language of the statute says that only those who obtain their insurance from exchanges established by a state qualify for such credits.38 The Court said the statute is ambiguous and that its meaning is of such existential significance to the viability of the statute that Congress could not possibly have intended implicitly to delegate responsibility for resolving the ambiguity to the executive branch.39 Thus the Court took the issue into its own hands and, applying the usual canons of statutory construction, arrived at its decision interpreting the word "state" to include "federal. See Administrative Procedure Act, 5 U.S.C. 706(2)(C) (2012) ("The reviewing court shall hold unlawful and set aside agency actions, findings, and conclusions found to be in excess of statutory jurisdiction, authority, or limitations, or short of statutory right."); see also Aaron L. Nielson, Cf.