# *Buffington v. McDonough*

Today, the Cato Institute, joined by the National Right To Work Legal Defense Foundation, filed a brief in support of the petitioner.

February 8, 2022 • Legal Briefs 

By Thomas R. McCarthy, Tiffany Bates, [Clark Neily](https://www.cato.org/people/clark-neily), & [William Yeatman](https://www.cato.org/people/william-yeatman) 

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Learn more about [Cato’s Amicus Briefs Program](/about/cato-amicus-program).

Under the *Chevron* doctrine, courts defer to plausible interpretations of the law set forth by regulatory agencies, even when the court thinks it has a better reading of the legal text. *Chevron* deference was established by the Supreme Court in 1984 and has since become the most widely known holding in administrative law.

The constitutional problem with the *Chevron* doctrine is that, within our tripartite government, it is the courts’ emphatic duty “to say what the law is,” as Chief Justice John Marshall famously explained. Under *Chevron*, judges do not “say what the law is,” but instead pass off that task to executive branch agencies. In this manner, the doctrine strains the separation of powers, which is a crucial bulwark for liberty.

Apart from these constitutional concerns, there is also a practical problem with *Chevron* deference—namely, courts are applying two different versions of the doctrine. The Supreme Court doesn’t even mention *Chevron* in about 75 percent of the cases where it could apply, and, in the minority of cases where the Court considers the *Chevron* framework, the trend during the Roberts era has been to limit the doctrine’s scope. While the Supreme Court has been ignoring or narrowing the *Chevron* doctrine, circuit courts routinely apply it, deferring in almost 80 percent of the cases where it’s sought by the government, according to one study. Simply put, the *Chevron* doctrine carries a lot more weight in the lower courts than it does at the Supreme Court.

Due to a reflexive application of *Chevron* deference by a three-judge panel of the Veterans Court, Thomas Buffington lost his challenge to a Department of Veterans Affairs decision regarding the timing of disability benefits to which he was entitled after serving in the Iraq War. A divided Federal Circuit panel affirmed, again relying on *Chevron* deference. Now, Mr. Buffington seeks Supreme Court review.

Today, the Cato Institute, joined by the National Right To Work Legal Defense Foundation, filed a brief in support of the petitioner. We urge the Court to take this case and harmonize the disparate versions of the *Chevron* doctrine that are being applied by the judiciary.

[![Buffington - cover](/sites/cato.org/files/styles/serial_cover_phone/public/2022-02/Buffington-cover.jpg?itok=5L_jxiRI)](https://www.cato.org/sites/cato.org/files/2022-02/Buffington.pdf) 

### Download This Legal Brief

##### *Buffington v. McDonough* 

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##### About the Authors 

![t-McCarthy-cropped.jpg](/sites/cato.org/files/styles/author_picture/public/2022-02/t-McCarthy-cropped.jpg?itok=k5IbzSvD) 

##### Thomas R. McCarthy 

Attorney At Law, Consovoy McCarthy PLLC

![t-bates.jpg](/sites/cato.org/files/styles/author_picture/public/2022-02/t-bates.jpg?itok=OeeQ-YpD) 

##### Tiffany Bates 

Associate, Consovoy McCarthy PLLC

[![Clark Neily](/sites/cato.org/files/styles/author_picture/public/2021-01/Clark%20Neily.jpg?itok=kOJs7hwY)](/people/clark-neily) 

##### [Clark Neily](/people/clark-neily)

Senior Vice President for Legal Studies, Cato Institute

[ 

](https://x.com/conlawwarrior) [ 

](mailto:cneily@cato.org) 

[![William Yeatman](/sites/cato.org/files/styles/author_picture/public/2021-01/Will%20Yeatman.jpg?itok=cX7wRQR4)](/people/william-yeatman) 

##### [William Yeatman](/people/william-yeatman)

Senior Legal Fellow, Pacific Legal Foundation

[![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) 
This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/). 

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