The Administrative State has never been more powerful. Agencies govern virtually every nook and cranny of everyday life.
The expansion of administrative power is due in part to court doctrines that have placed near unbounded power with administrative agencies and caused much mischief over the last century.
The nondelegation doctrine was intended to bar Congress from giving away too much of its legislative power. But under the Supreme Court’s current interpretation of the nondelegation doctrine, much of the substantive policy-making authority is left to administrative agencies. Agencies do about twelve times as much lawmaking as Congress.
The Chevron doctrine requires federal courts to defer to an agency’s interpretation of federal law. The doctrine wrests a good deal of interpretive authority from the federal courts.
Two recent Supreme Court decisions offer hope that the Supreme Court will check administrative power in the near future.
From cases in 2019, it is clear that the Supreme Court may be poised to reconsider the nondelegation doctrine and Chevron deference—doctrines that have placed vast authority with administrative agencies to make and interpret federal law.
In Gundy v. United States, four justices suggested that they would revisit the nondelegation doctrine and require Congress to exercise more policy-making authority. (Justice Kavanaugh did not participate, but his views on the administrative state suggest that he, too, is interested in revisiting the doctrine.)
In Kisor v. Wilkie, five justices suggested that Chevron deference might be up for a trim in the future.