It’s time to rein in the administrative state

As we all know from Schoolhouse Rock, Congress writes the laws, the president enforces the laws, and the courts interpret and apply the laws. That’s not the reality of how our behemoth federal government works on a day-to-day basis, however. Far more common is for Congress to write a statute with vague aspirations—something like, “Environmental Protection Agency, make sure the air is clean.” Then it is up to the agency with its sprawling unelected bureaucracy to decide, when it comes to “clean air,” how many parts per million of any specific pollutant is too many.

In other words, Congress often delegates the job of filling in the details to the bureaucratic agencies, which together make up the administrative state. Thankfully, the Supreme Court has decided to take up the important question of federal bureaucracy and its overreach. Can unelected bureaucrats just make up rules that function as law?

In 1984, in a case called Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court first confronted the question: By what rule or standard will we decide cases when someone challenges an agency’s interpretation of its powers and duties? The Court, in a majority opinion by Justice John Paul Stevens, reasoned that agencies have a particular expertise in their subject area that courts are bound to respect what amounts to administrative law. If Congress has not spoken precisely, courts should defer to agencies as long as the agency has given a permissible interpretation to the statutory language. In other words, if the agency’s interpretation is within the realm of reasonable, the courts should uphold it.

This concept of Chevron deference has spurred decades of opposition from regulated industries, academics aligned with the Federalist Society, and political conservatives, all of whom see it as telling courts to rubber-stamp the decisions of unelected D.C. bureaucrats. As the modern administrative state has metastasized, running roughshod over more and more of our freedoms and the economy, Chevron deference has given big-government bureaucrats a nearly blank check. In essence, the tie always goes to the agency—and that means a huge thumb is on the scales of justice in favor of the bureaucracy.

Our framers didn’t want government to have that kind of power. In one of the most famous cases in all of American history, the great Chief Justice John Marshall declared in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is.” Yet for the past four decades, the federal judiciary has failed to exercise that power. Unelected bureaucrats, captive to the D.C. swamp mentality, have the privilege of determining the law, without an independent check from the judiciary. So, as you would expect any authority to do when it can operate unchecked, the administrative state increases its own power, and government overreach and rule-making has just has grown and grown.

Let’s also not let Congress off the hook here. Congress is elected to write the laws. But partisan gridlock, the decline of committees, the rise of the permanent campaign, the 3,000-page omnibus bills—whatever the cause, Congress has not been doing that job. Congress finds it easiest to pass legislation when a bill kicks all of the controversial decisions to the bureaucrats, who are not directly politically accountable to the voters. Congress must step up to the policy-making plate. Until it does, this problem will just continue.

Several state supreme courts have already charted the way to restoring judicial oversight. In 2018, for instance, the Wisconsin Supreme Court decided to end the state courts’ version of Chevron deference, insisting that judges rather than bureaucrats were best positioned to interpret statutes. In the five years since that decision, the sky has not fallen, and the trash continues to get collected. The bureaucrats may be annoyed that they lost some of their power, but citizens can be happy that the separation of powers has been restored.

That’s ultimately what is at stake when we talk about Chevron. The key insight of the founders is that if men are not angels, and power must exist in society in some form, so it is best to divide it up with checks-and-balances among those who wield it. That’s the genius of the American system. And it is high time the courts recover some of their authority over the so-called independent executive agencies. The bureaucracy must not usurp the power of the legislature, and Congress must take responsibility and do its job.