On Misciting Marbury

January 29, 2024

Originally published by The Regulatory Review

“It is emphatically the province and duty of the judicial department to say what the law is.”

That quotation from the U.S. Supreme Court’s famous 1803 opinion in Marbury v. Madison has been recited thousands of times. Most of the time, however, it is taken out of context and cited to support a proposition that it cannot support. For instance, it is currently being used as one of the main arguments in support of the effort to overturn the Chevron doctrine that the Supreme Court is re-considering in Loper Bright Enterprises v. Raimondo.

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