Deconstructing the Administrative State: Constitutional Debates over Chevron and Political Transformation in American Law
103 Pages Posted: 22 Oct 2018 Last revised: 9 Nov 2018
Date Written: October 11, 2018
In 2018, Justice Kennedy wrote that the Supreme Court should “reconsider the premises” of Chevron v. NRDC based on “separation-of-powers principles.” In 2015, Justice Thomas was the first judge to argue in an opinion that Chevron is unconstitutional, and Justices Gorsuch and Kavanaugh are the only judicial nominees whose anti-Chevron critiques were featured elements of their candidacy. Petitions for certiorari have challenged Chevron’s constitutionality, echoing litigants in other federal courts, and academics have joined both sides of the debate. This Article responds to modern disputes over Chevron with a new history of how the constitutional crisis developed, a rebuttal of modern critiques, and a description of their potentially destructive effect on administrative governance and constitutional law. The Article describes a shift from Reagan-era support for Chevron to “post-Scalian” attacks. It concludes by considering anti-Chevron constitutional critiques alongside other Trumpist efforts to “deconstruct the administrative state.” To overrule Chevron would be the most radical decision about constitutional structure in eighty years, unsettling hundreds of judicial decisions, thousands of statutes, and countless agency decisions. This Article contributes to existing literature with novel historical research, and detailed engagement with anti-Chevron critiques that have become newly sophisticated and politically powerful.
Keywords: Chevron, Deference, Political history, Administrative law, Administrative state, Legal History, Constitutional Law, Supreme Court history, Agencies, Federal courts, Constitutional history, Originalism, New Deal, Marbury v. Madison, Reagan Revolution, Steve Bannon, Trump Administration, U.S. history
JEL Classification: K10, K20, K23
Suggested Citation: Suggested Citation