The Supreme Court appears poised to continue to rein in the administrative state and restore the separation of powers and structure of government established by the Constitution. That will be accomplished by abolishing the Chevron deference doctrine, derived from the 1984 landmark case Chevron USA v. Natural Resources, which as oral arguments in Loper Bright Enterprises v. Raimondo indicated, the court is ready to overrule.
Many of our laws are not directly created by those whom we elect to legislate. A great many of the laws that govern our daily lives come from regulations promulgated by executive administrative agencies. The lawmaking process typically consists of acts of Congress, which contain broad policy objectives, and which direct executive administrative agencies to fill in the details. Thus, Congress may pass a particular law, called an enabling act, to protect clean air, but then gives an administrative agency, like the EPA, the authority to specify exactly what clean air means and what level of emissions are appropriate.
But many times, Congress is not clear about the extent of the authority it has delegated to an executive agency. That was the issue in Chevron, where the Supreme Court held that “courts must defer to administrative agency interpretations of the authority granted to them by Congress where the intent of Congress was ambiguous and where the agency’s interpretation was reasonable or permissible.”
There are many practical reasons why Congress delegates authority to executive administrative agencies: The agencies often have more expertise in particular areas, delegation is less time-consuming than creating detailed legislation on their own, and broad bills are easier to pass than those which specify particular details.
But the broad delegation of congressional legislative authority to executive agencies is in inherent tension with our constitutional system of separation of powers and limited government. The text of the Constitution is clear in Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States.” However, administrative agencies are part of the executive branch, which means that a substantial amount of lawmaking in the United States comes from the branch which is actually supposed to be enforcing, rather than creating, the law.
This is problematic because there is substantially less democratic accountability for executive agencies in contrast to Congress. Agencies are staffed by unelected officials who are often unknown to everyday citizens. The issue goes to the most basic philosophical foundation of our government. Following John Locke, the founders believed that all political power is derived from the consent of the governed. According to Locke, “The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.”
Obviously, the exact nature and limits of the separation of powers has been a subject of debate in every constitutional government throughout history, but the Chevron deference has further blurred these lines. Chevron allows agencies to essentially decide for themselves how much authority has been given to them — something inherently at odds with checks and balances. By deferring to administrative agencies’ interpretations of Congress’ enabling acts instead of those by courts, Chevron also encroaches on the judiciary’s power of judicial review.
Many see administrative law and separation of powers issues as theoretical subjects for classroom discussions, but recent Supreme Court cases illustrate exactly the real-world issues associated with allowing administrative agencies excessive latitude. Mainly, presidents often try to squeeze in through executive agency regulations what they cannot get passed in Congress.
In Alabama Association of Realtors v. HHS, executive agency regulations significantly impacted property rights when the CDC tried to use a statute mainly pertaining to sanitation to impose a nationwide eviction moratorium after the height of the COVID-19 pandemic was over. There, the Supreme Court held that the CDC exceeded its statutory authority. Likewise, agency decisions can significantly affect personal liberty and autonomy. In NFIB v. OSHA, the Supreme Court held that OSHA exceeded its statutory authority when it used a federal law allowing it to set “occupational safety standards” to instead impose a nationwide vaccine mandate.
The economic impact of agency decisions is also crucial. In West Virginia v. EPA, the Court held that the EPA overstepped its authority because when an agency regulates a “major question” of “vast political and economic significance,” it “must point to clear congressional authorization for the power it claims.” Similarly, in Biden v. Nebraska, the Court held that the Department of Education exceeded its authority by using a law granting it power to “waive or modify” student loan payments during national emergencies to try to completely cancel billions of dollars of student debt.
If Chevron is overruled, it will mean that Congress has to do more of its own legislating, which would mean more laws written by the people we elect to make them. In a constitutional republic, that is a good thing.