The Kavanaugh Court and the Schechter-to-Chevron Spectrum: How the New Supreme Court Will Make the Administrative State More Democratically Accountable

Abstract

Beginning in 1935, accelerating in the 1940s, and peaking in recent decades, federal policy has been increasingly decided by electorally unaccountable administrators. Rather than elected representatives, unelected bureaucrats increasingly make the vast majority of the nation’s laws – a trend produced the Supreme Court’s decisions in three areas: delegation; deference; and independence.

This trend is about to be reversed. In the coming years, Congress will delegate less, agencies will receive less deference from courts, and agencies will enjoy less independence from the President – all because the Supreme Court will add new life to Schechter’s non-delegation doctrine, severely limit Chevron, and roll back Humphrey’s Executor. With each decision, the Court will shift decisionmaking away from policymakers who are politically unaccountable, and toward those more directly controlled by the citizenry, as it moves the administrative state away from the Chevron extreme of what I call the Schechter-to-Chevron spectrum.

This article argues that the Court’s most junior member, Justice Brett Kavanaugh, will lead this impending movement along the Schechter-to-Chevron spectrum; that Kavanaugh’s conservative colleagues will follow him; and that the principle of democratic accountability will animate each movement of this jurisprudential revolution.

Although Justice Kavanaugh’s nomination process focused on hot-button topics like abortion, presidential investigations, and accusations of sexual assault, the most long-lasting impact of his confirmation lies in this area of separation of powers. His membership on the Court may not change what the federal government can do, but it will profoundly change who can do it. In this sense, we are likely to see the most rapid change in how the federal government makes national policy since the founding generation replaced the Articles of Confederation with the United States Constitution.

What follows is an exploration of how, and why, this change is coming soon.

Keywords: Separation of Powers, Kavanaugh, Administrative Law, Constitutional Law, Supreme Court, Executive Power, Unitary Executive Theory, Chevron, Delegation