by Mitch Kokai
Senior Political Analyst, John Locke Foundation
… [I]t’s likely that the court’s new conservative majority will pare back the power of the administrative state when an appropriate case comes before the court. But instead of reducing the protections American get from regulation, the court will be acting to preserve American democracy—something academics and others on the left fail to recognize or appreciate.
The administrative state’s threat to democracy arises primarily from a 1984 Supreme Court ruling in Chevron v. Natural Resources Defense Council. There, the court directed lower federal courts to defer to administrators’ interpretations of their own statutory authorities, if these interpretations are “reasonable.” …
… The deference that the Chevron court accorded to administrative agencies in 1984 enabled them to interpret their statutory authority very broadly, and substantially reduced the likelihood that reviewing courts would object. As a result, in every year since 1993 the agencies of the administrative state have issued over 3,000 rules and regulations—a total of more than 101,000 in 25 years. While that in itself does not prove that these rules were not authorized by Congress, it does suggest that the agencies have been taking full advantage of the Chevron decision to expand their rule-making authority.
Many of those who fear elimination or modification of what is called Chevron deference like the policies that the agencies of the administrative state have imposed. But they ignore the fact that, in a democracy, unelected officials should not have the power to make rules that have not been specifically authorized by Congress.
That is likely to be the test that the new, more conservative Supreme Court will apply if it modifies or eliminates Chevron.