The Supreme Court recently heard arguments in two cases that could determine the future of the administrative state.
In Relentless Inc. v. Department of Commerce and Loper v. Raimondo, the court is considering the viability of a legal doctrine obligating courts to defer to federal agencies’ interpretations of law. The Chevron Doctrine (after the Supreme Court decision Chevron v. Natural Resources Defense Council) has allowed administrative agencies to stray far beyond their congressionally mandated boundaries — essentially allowing them to create new laws.
In Loper, for example, the Department of Commerce mandated that small-boat fishermen needed to pay federal monitors without any authority from Congress.
Some justices on the Supreme Court cast doubt on the continued viability of the Chevron Doctrine. Justice Neil Gorsuch noted that Chevron ties the hands of courts to automatically defer to agencies’ interpretations of law. Justice Samuel Alito seemed to believe that using traditional tools of statutory construction like textualism will ensure that judges don’t engage in policy decisions. Justice Elena Kagan, however, offered a defense of Chevron, noting that judges shouldn’t try to overrule the expertise of agency officials.
This skepticism tracks with recent decisions from the court respecting the separation of powers. Last year, the court ruled that President Biden did not have the authority to unilaterally cancel hundreds of billions of dollars in student loans. In short, Congress never passed a law authorizing the president to forgive those loans. And recently the court invoked the “major questions doctrine” when it struck down the Environmental Protection Agency’s efforts to implement a renewed Clean Power Plan. The major questions doctrine says that an agency cannot implement a regulation having enormous political and economic consequences unless Congress has specifically delegated that authority.
Despite the recent decisions to rein in the administrative state, the government continues to regulate with impunity. The EPA continues to try to implement its version of a new Clean Power Plan, President Biden continues to forgive billions in student loans, and the Department of Energy continues to attempt to regulate the sale of gas stoves. It appears that recent decisions from the court are cast aside when they conflict with the administration’s agenda.
Proponents of an all-powerful administrative state understand that challenging their rules and regulations is enormously costly and time-consuming. An agency can finalize a regulation that may violate the major questions doctrine but unless well-funded parties sue, the agency will continue to rule. Thus, the power lies with the federal agency with smart lawyers and unlimited resources.
Invocation of the major questions doctrine hasn’t seemed to slow the growth of the administrative state. What remains to be seen is whether the president (and later administrations) will respect the Supreme Court’s decisions and begin to limit agency appropriations of power. The question arises: Assuming the court revokes the Chevron Doctrine, will the Executive Branch respect the rule of law and defer to the Supreme Court’s authority? And would that decision slow or stop the inexorable march to bureaucratic rule?
