최근 미연방대법원의 행정입법등에 대한 변화된 위헌심사기준과 그 함의(含意) - 셰브론원칙의 공식 파기와 그 파장 -

Abstract

Recently, the U.S. Supreme Court handed down a decision that deserves considerable attention not only in the U.S. but also in Korea. It is the Loper Bright Enterprises v. Raimondo decision (2024), which declared the abolition of the Chevron Doctrine, which was established through the 1984 Chevron decision. The expansion of the agency deference doctrine has been criticized as being against the principle of separation of powers in that the interpretation of laws by the agency infringes on the legislative power of the Congress, and furthermore, it causes the courts, which are supposed to monitor the actions of the agency, to be excessively restrained in exercising their judicial power. In response, the U.S. Supreme Court, which meticulously prepared for the abolition of the Chevron Doctrine over several years, abolished the “agent deference doctrine” as a standard of review for determining how far the agency’s interpretation authority will be allowed when making administrative legislation or performing administrative actions based on a specific law, and introduced the so-called “major question doctrine” or “major question doctrine.” The ‘principle of important issues’ means that administrative legislation on policies important to the nation, society, or economy must have an explicit mandate from the National Assembly, that is, a legal basis. This principle of ‘important issues’ or ‘important questions’ is not an unfamiliar theory to us. It is the principle of parliamentary reservation established by the German Federal Constitutional Court and accepted by our Supreme Court and Constitutional Court, and the standard for examining violations thereof, namely ‘reservation of important matters’ or ‘reservation of essential matters’ (theory of essentiality). Considering that the Chevron principle was abolished in the United States after 40 years, our courts and Constitutional Court should not stop at simply supporting various administrative actions such as the enactment of administrative legislation by administrative agencies. We should respect the authority of administrative agencies to make their own policy judgments in their respective fields and create sound administrative legislation based on technical and professional knowledge in their own areas, but we should also have institutional devices that can appropriately check the actions of the executive branch at any time. As such institutional devices, it would be necessary to systematically review and establish political standards for the currently used theory of reservation of important matters or theory of essentiality, and this would be the same problem for the US Supreme Court.