What the past can teach us about a post-Chevron America

Lawmakers, lawyers, and advocacy groups are still unpacking the fallout from the Supreme Court’s decision to overturn what’s known as the Chevron deference. The decision is set to change the way the courts and Congress interact with federal agencies, and scholars say the ruling marks an effort by the Supreme Court to limit the power of the administrative state.

The origins of the administrative state, a term used to describe the federal agencies and the scope of their power, go back more than a century.

“Before the 1920s I’d say there were not that many administrative agencies. They didn’t touch American life that much,” said John Vecchione, senior litigation counsel for the New Civil Liberties Alliance and one of the lawyers who helped overturn Chevron.

Around the turn of the 20th century, a new wave of lawmakers, the progressives, argued that the existing structures of government didn’t do enough to protect workers, the food supply, the environment or many other aspects of life in America.

“The progressives said that industrialization and urbanization had thrown up a set of new problems, that the old forms of governance were not good at handling,” said Mark Tushnet, a professor emeritus at Harvard Law School, who said the progressives also “thought that the legislatures were not adequate, partly because they thought that they were under the control of interest groups, often, in their view, they were corrupt.”

In addition to thinking that Congress was in the pocket of the so-called “robber barons” of the era, Tushnet said progressives believed the courts couldn’t be proactive, only reactive.

“They had to wait for people to bring problems to them,” he said, “but things like accidents to workers …the courts couldn’t do a good job of addressing why it was that so many workers were getting injured.”

Then, in the 1930s, as America struggled through the Great Depression, President Franklin Delano Roosevelt increased the size of the federal government by creating several new federal agencies. The Supreme Court pushed back against the expansion of executive powers, so Roosevelt tried to pack the court.

Eventually, said Craig Green, a  professor of law and government at Temple University, “FDR didn’t get to pack the court, but he did get to pack the government, and the Supreme Court since the 1930s has been relatively hands off in managing the administrative state.”

Green said that has meant letting experts at federal agencies respond to new developments as they come up rather than waiting for Congress.

“The emergence of the federal administrative state made it a national economy, made it a national government,” he said. “[It] allowed for national policies that would be set ultimately from the top, from the President and through democratic elections, and they wouldn’t have to wait for new statutes passed every year or every new crisis, because there’s just not time for that. There needs to be expertise.”

Over the decades, as the administrative state continued to grow in size and power, a new generation of federal judges had different ideas about the balance of power among Congress, the agencies and the courts.
 
“Ironically, the original Chevron decision was to keep the judges in their swim lane,” said Susan Dudley,  founder of George Washington University’s Regulatory Studies Center. She said after the 1984 decision, in which the Supreme Court instructed the courts to defer to federal agencies in interpreting many laws, those agencies used the ruling to to take on additional powers.

“And now the concern is that it’s gone too far the other way,” said Dudley, “and is not allowing judges to do what they should do, which is say what the law is, and is letting agencies expand too much, and is also giving Congress incentives, or at least a free pass when they don’t do what they’re supposed to be doing under the Constitution.”

And while the pendulum is swinging back towards the pre-Chevron era of less power for federal agencies, John Vecchione at the New Civil Liberties Alliance says it’s alarmist to assume we’re going back to the excesses of the gilded age. “We have a lot more laws and administrative agencies than [in] the 19th century, and those laws don’t go away,” he said. “The regulatory power is still there, but [agencies] don’t get congressional power to define the law. That’s what’s happened here.”

Experts are divided on just how much will actually change in a post-Chevron environment, and many are taking a “wait and see” approach.

“The agencies that existed before Chevron were doing decent, not great, but decent jobs handling the problems that they were supposed to handle,” said Mark Tushnet at Harvard. “I think that the expectation should be that agencies in the world without Chevron will do decent, not great, jobs with the new sets of problems that they’ve been asked to handle.”