Now is the winter of our discontent
Made glorious summer by this sun of York;
And all the clouds that lour’d upon our house
In the deep bosom of the ocean buried.
Anti-administrativists are poised for a coup d’état. For the last thirty years, courts have deferred to federal agencies’ interpretations of law while rarely considering the constitutionality of the delegation underlying the agencies’ policymaking authority. In recent years, the Supreme Court’s anti-administrativists—Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch—have called for reconsideration of administrative law’s core doctrines and constitutional roots. With the appointment of Justice Kavanaugh, the anti-administrativists now have a majority on the Supreme Court. Accordingly, administrative law scholars and practitioners should anticipate a doctrinal revolution during the next decade.
I use “anti-administrativists” as shorthand for individuals who believe modern administrative law requires reform to ensure fidelity to the United States Constitution and the rule of law. In the words of Aaron Nielson, anti-administrativists argue that “administrative law can be better as a matter of procedural fairness, substantive outcomes, and compliance with statutory and constitutional law.” At the core of anti-administrative ideology is the belief that bureaucratic governance frustrates the separation of powers. Agencies exercise the enumerated powers of the other branches by promulgating binding rules like Congress, interpreting statutes like courts, and—with respect to independent agencies—acting outside the reaches of presidential oversight. The strongest anti- administrativists argue that the entire foundation of the modern administrative state violates basic principles of the Constitution. More lenient anti-administrativists acknowledge that delegation has become an integral part of modern government but insist on strict oversight of agencies.
To be clear, one should not interpret the phrase “anti- administrativist” as pejorative. While I do not self-identify as an anti- administrativist, I sympathize with their concerns. We should strive for a system of government that embraces efficiency, expertise, transparency, and the separation of powers. Anti-administrativists have contributed much to the dialogue about how our government should function. Now, with a majority on the Supreme Court, they have the opportunity to reshape administrative law in ways that comport with their ideology.
Anti-administrativists have already fired the first shots of the revolution at the Chevron standard of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court announced a two-step standard of review for assessing whether a court should defer to an agency’s reasonable interpretation of an ambiguous statute. Chevron is an easy target. It is the most cited case in administrative law. More importantly, since its inception, jurists and scholars have warned that Chevron has expanded bureaucratic authority by depriving the courts of their power to interpret the law. In recent years, these concerns have led many commentators to call on the Supreme Court to overturn the Chevron doctrine and restore de novo review as the proper standard for reviewing agency interpretations of law. Even Congress has proposed legislation that would eliminate Chevron by amending the Administrative Procedure Act to require reviewing courts to “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules.”
Yet it seems unlikely that the Supreme Court will overturn Chevron. Elsewhere, Kristin E. Hickman and I argue that deference is the inevitable result of Congress’s delegation of policymaking authority to agencies. The Supreme Court acknowledges that statutory interpretation “is often more a question of policy than of law,” and policymaking belongs to the political branches—not the courts. Chief Justice Roberts agrees. Dissenting in City of Arlington v. FCC, Chief Justice Roberts remarked, “Chevron importantly guards against the Judiciary arrogating to itself policymaking properly left, under the separation of powers, to the Executive.” Indeed, courts have long deferred to agency interpretations of statutes to avoid straying too far into the policymaking realm. Unless the Court revives the nondelegation doctrine in its harshest form, Congress will continue to delegate policymaking authority to agencies under incomplete statutes, agencies will fill the gaps in those statutes, and courts will defer to the agencies’ policy decisions.
However, Hickman and I never suggest that Chevron will live a peaceful existence. If Chevron survives, how will it function when the Supreme Court completes its anti-administrativist revolution? Although Chevron’s boilerplate remains relatively consistent, its application varies depending on which judge or justice authors the opinion. Chevron’s rigor depends on how clear Congress must speak to foreclose deference, how reasonable the agency’s interpretation must be to warrant deference, and whether the judge applies a formalistic construction of the two steps. Even outside of the anti-administrativist critique, scholars have called on the Supreme Court to provide lower courts with more guidance as to when and how Chevron applies. An anti-administrativist Supreme Court could—and undoubtedly will—weaken Chevron without disposing of it.
This article draws from current trends among anti-administrativists to explore how the Supreme Court may curtail Chevron in future cases. That is not to suggest that the Supreme Court will implement all of the changes I identify here. Rather, this article is best understood as a menu of à la carte options that the Supreme Court may use to address anti- administrativist concerns. The more limitations that the Supreme Court orders, the less often lower courts will defer to agency interpretations of law.