Chief Justice Marshall memorably stated in Marbury v. Madison: “it is emphatically the province and duty of the judicial department to say what the law is.” Decades ago Professor Benard Schwartz’s lectures made it abundantly clear that the separation of powers doctrine had undergone a major case of radical surgery in an increasingly and technically complex society. Recently, the United States Supreme Court heard oral arguments on whether, despite stare decisis, Chevron v. Natural Resources Defense Council should be overruled or at least modified. Administrative law may be subject to radical surgery once again.

Chevron held that in the presence of silence or ambiguity, the statutory interpretation by an administrative agency is entitled to deference as long as such interpretation is reasonable. A decision to overrule the precedent would place the responsibility for the ultimate interpretative decision on the appellate court. A decision merely to modify Chevron might deny deference in the case of statutory silence as opposed to ambiguity.