09/18/2020

Opinion: The Supreme Court May Begin to Tame the Administrative State

If the court overturns Auer, a logical next step would be to reconsider deference for agency interpretations of the statutes that authorize their actions. In Chevron v. Natural Resources Defense Council (1984), the justices directed lower courts to defer to any agency interpretations of laws enacted by Congress, so long as the interpretation is deemed “reasonable.” Chevron deference has engendered significant opposition, with critics arguing that agencies will always opt for a broader rather than a narrower view of the statutes they administer and that judicial deference also gives government agencies an unfair advantage in litigating with private parties.

In addition, Chevron helped enable a vast expansion of administrative rule making. Since 1993, the agencies of the administrative state have issued more than 100,000 rules, and never fewer than 3,000 in a year, according to Wayne Crews of the Competitive Enterprise Institute. This avalanche of rules and regulations is beyond the ability of the president or Congress to control. It is also a challenge to the rule of law.

The strongest argument for curtailing deference is that the judiciary’s hands-off approach under Chevron and Auer has enabled the agencies of the executive branch to assert power Congress never gave them. In many cases, unelected agency heads and bureaucrats have become America’s main lawgivers. The court may have come to recognize that the only way to halt this process is for the judiciary to take a more active role in limiting administrative authority.

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