The Plan to Incapacitate the Federal Government: Without Chevron, the executive branch will struggle to do even the most basic work ( www.theatlantic.com )
Last Wednesday, over the course of three and a half hours of arguments, the conservative and liberal justices on the U.S. Supreme Court jousted over whether to overrule a 40-year-old case called Chevron v. National Resources Defense Council.
The Chevron case is famous among lawyers—it’s among the most cited cases of all time—because it established the principle that the courts should defer to federal agencies when they interpret the law in the course of carrying out their duties. That may not sound like a big deal, but it is. Chevron shields the executive branch from overly intrusive court review, giving it the flexibility to do its work.
But the case is under threat. Conservative justices on the Supreme Court want to dismantle Chevron, believing that deference is improper because courts—not federal agencies—ought to say what the law is. They may have the votes to scrap the case outright; if not, they will almost certainly narrow its scope.
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Wherever the truth lies, ditching Chevron is only one part of the conservative legal movement’s ever more successful campaign to intensify judicial controls over the administrative state. In recent years, the justices have produced a new “major questions doctrine” to restrain agencies that do things of great economic or political significance. They have toyed with telling Congress that some of its delegations are so broad as to be unconstitutional. They are exploring new limits on the types of cases that agencies can resolve. And they seem to have upped the intensity with which they review whether agency decisions are “arbitrary.”
