No more deference to the administrative state

Last month, in a case defending religious liberty, Judge Neil Gorsuch announced that an old precedent had ceased to be good law: « This Court has long since abandoned Lemon. » One day, the Supreme Court will be able to issue an equally late notice of death for Chevron c. Natural Resources Defense Council, the 1984 decision which greatly expanded the power of administrative agencies. If so, the beginning of the end will have been on the closing day of this year’s term, when the high court decided West Virginia v. Environmental Protection Agency.

In Chevron, the judges ruled that when Congress enacts an “ambiguous” law, the courts are obligated to defer to any “reasonable” interpretation offered by an executive branch agency. The Chevron The doctrine assumes that agency staff have expertise that judges lack and that agencies are more democratic than courts because the former report to the president. Chevron deference has allowed the EPA to set national carbon dioxide standards, the Department of Transportation to prescribe automobile safety devices, and many other agencies and departments to regulate virtually every aspect of American life.