Agency Authority, the Chevron Doctrine’s Death, the Major Questions Doctrine’s Birth, and the Ongoing Constitutional Drama of Who Gets to Decide What the Law Means
Agency Authority, the Chevron Doctrine’s Death, the Major Questions Doctrine’s Birth, and the Ongoing Constitutional Drama of Who Gets to Decide What the Law Means
Welcome to the Branch That Isn’t in the Constitution but Runs Most of the Country
Picture the federal government as a house. Congress is the architect who draws the plans. The President is the contractor who is supposed to build what the architect designed but has opinions about load-bearing walls. The Supreme Court is the building inspector who shows up periodically and condemns things. The administrative state is the plumber, the electrician, the HVAC technician, the pest control company, the landscaper, and the three people who showed up on Tuesday and nobody knows exactly what they do but the house stops working when they don’t come. The administrative state is not in the Constitution. It is in the house. It is, at this point, mostly the house.
Federal agencies issue approximately 3,000 to 4,000 final rules per year. Congress passes approximately 200 to 300 laws per year. This means agencies produce roughly 15 times as much binding legal text as Congress does, which is either an efficient division of labor (Congress sets direction, experts fill in technical details) or a massive transfer of lawmaking power from elected representatives to unelected bureaucrats, depending on which direction the rules are going and whether they regulate something you care about. The business community calls it overreach when regulated and efficiency when deregulated. Civil society calls it protection when regulated and captured when deregulated. The agencies call it their statutory mandate and continue issuing rules.
The Chevron Doctrine: 40 Years of Deference, Then a Sudden Stop
From 1984 to 2024, federal courts operated under the Chevron doctrine: if a statute was ambiguous, courts deferred to the relevant agency’s reasonable interpretation of that ambiguity. The theory was that Congress, in writing ambiguous statutes, implicitly delegated interpretive authority to the expert agency implementing the law. The practical effect was that agencies had significant latitude to interpret their own authority broadly, and courts – lacking technical expertise in telecommunications regulation, environmental chemistry, financial markets, and the other subjects agencies regulate – largely went along with it. Agencies grew comfortable with this arrangement. Regulated industries became familiar with challenging agency rules in court and usually losing. The administrative state expanded. Chevron was cited in tens of thousands of cases. Legal academia produced several careers’ worth of Chevron scholarship. Everything was stable.
Then in 2024 the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo, holding that courts must exercise independent judgment in interpreting statutes rather than deferring to agencies. This is either a return to the proper constitutional role of the judiciary or a transfer of regulatory authority from expert agencies to generalist judges who will now interpret the Clean Air Act, the Dodd-Frank Act, and the Telecommunications Act without the benefit of the technical expertise that led Congress to create specialized agencies in the first place, depending on your theory of administrative law and your confidence in federal judges’ ability to understand chemistry. The post-Chevron world is new. The regulations continue. The litigation has increased. The lawyers are doing well.
The Major Questions Doctrine: Big Things Need Big Permission
The Supreme Court has also developed the “major questions doctrine” – the principle that when an agency claims authority to regulate something of “vast economic and political significance,” it needs clear congressional authorization, not merely a plausible statutory interpretation. The Court applied this doctrine to strike down the EPA’s Clean Power Plan, the OSHA COVID vaccine mandate, and the Biden administration’s student loan forgiveness program. The doctrine makes intuitive sense: if Congress wants agencies to make transformative policy, it should say so clearly. The doctrine also raises a question it does not answer: who decides what counts as “vast economic and political significance”? The Court decides. The Court is composed of nine lawyers who were not elected, whose technical expertise is in law rather than economics or public health or environmental science, and who are now deciding whether specific regulatory actions are important enough to require clearer congressional authorization than the agencies thought they had. This is either judicial restraint (keeping agencies within their lane) or judicial activism (five lawyers deciding which regulatory actions are too big, based on a doctrine they invented). Both descriptions are accurate. Both sides use them selectively. The doctrine is new. The confusion is just beginning.
Criticism and Reform: Everyone Hates the Administrative State for Different Reasons
The administrative state is criticized from the right for being too large, too expensive, too burdensome on business, insufficiently accountable to elected officials, and staffed by a permanent bureaucracy resistant to direction from any administration committed to changing it. The administrative state is criticized from the left for being captured by the industries it regulates, insufficiently protective of workers and the environment, too slow to respond to new risks, and staffed by officials who rotate between government and the private sector in ways that create conflicts of interest. The administrative state is criticized from the libertarian perspective for existing. These critiques are partially correct, internally consistent, and mutually incompatible as reform agendas, which is why administrative state reform has been proposed continuously since roughly 1960 and achieved intermittently and partially, because the coalitions required to reform it in any direction are different from the coalitions required to pass legislation generally, and the status quo – unwieldy, expensive, partially captured, partially effective – is the equilibrium produced by the balance of forces that have been pushing against it for 60 years. The balance continues. The rulemaking continues. The Federal Register continues to be published daily, approximately 80,000 pages per year, and read by an audience consisting primarily of lawyers, regulated industries, and scholars who study what nobody else reads. Democracy, working as designed.
SOURCE: The London Prat