The Supreme Court continues to hear major cases involving the administrative state. As federal agencies assert ever stronger powers, the Court is evaluating new questions and reconsidering old ones. This questioning has been phrased mainly in terms of our constitutional founding, and rightly so. As Chief Justice John Roberts wrote in 2013, the “Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities.”

But when the justices heard their last big administrative-state case—November’s SEC v. Jarkesy—they turned to more recent history. In that case, the government relied heavily on a 1977 precedent, Atlas Roofing Co. v. OSHA­, for its sweeping proposition that an agency can negate the Seventh Amendment right to trial by jury by suing people in the agency’s own in-house tribunal instead of a trial court. The justices had a number of doubts about this line of argument, but the chief justice raised a particularly blunt one.

Atlas Roofing is 50 years old,” he stressed. “And the extent of impact of government agencies on daily life today is enormously more significant than it was 50 years ago. . . . I mean, the government is much more likely to affect you and proceed against you before one of its own agencies than in court, and that concern and that threat is far greater today than when Atlas Roofing was set up.”

Justice Samuel Alito pursued a similar line of argument in October, when the Court heard a constitutional challenge to the Consumer Financial Protection Bureau’s power to fund itself without congressional appropriations. When the solicitor general vaguely invoked “history” to support the CFPB’s power, Alito took a careful look at that history and pressed her to concede that the agency’s particular combination of fiscal independence and regulatory power was actually unprecedented.

Ambitious agencies already bristle against criticism that the modern administrative state violates the Constitution’s original meaning—that it is unconstitutional to make some agencies independent of the president, because the Constitution exclusively vests the president with “the executive power.” And it is the Constitution’s original meaning that is the most important question in these cases. But as Alito, Roberts, and their colleagues increasingly show, the administrative state’s doubters are not just originalists; they’re realists, too. And the agencies might get another reality check this week when the Court reconsiders Chevron deference.

In Chevron, the Court directed lower courts to give agencies great leeway in administering broadly worded statutes. When a statute—say, a provision of the Clean Air Act—is not clear but ambiguous, then the courts should generally defer to the agency’s reasonable interpretation of the statute. Following the federal courts’ micromanagement of federal agencies—especially agencies’ deregulatory efforts in the 1970s and 1980s—Chevron was originally defended as a way to ensure that judges didn’t supplant presidential administrations’ policy judgments. For decades, Chevron’s most eloquent and energetic defender was Justice Antonin Scalia.

The Chevron precedent only turns 40 this year—not quite as old as Atlas Roofing. Still, when comparing today’s agencies with those of 1984, the past truly is a foreign country. Agencies have fully supplanted Congress as the center of gravity for American policymaking. They are far bolder in claiming immense and unprecedented power under the auspices of old laws. They are far more willing and able to leverage regulatory uncertainty under vague statutes. They are more creative in imposing new policies outside of the Administrative Procedure Act’s notice-and-comment procedures. They are more adept at colluding with state or foreign regulators to whipsaw U.S. companies—say, with California over energy policy, or with Europe on financial and tech regulation.

Chevron was intended to elevate both expertise and political accountability in presidential administration, simplify judicial review, and reinforce Congress’s central role in American government. In hindsight, it fell far short in all of these objectives, and may well have undermined them. In 1984, Chevron sought to strike a prudential balance between judicial and executive power. But in 2024, the administrative state’s own dramatic changes may require a prudential re-balance.

This does not necessarily mean a complete renunciation of courts giving some weight to an agency’s interpretation of vague statutes. Indeed, a judicial approach that tries to wave away the challenge of interpreting vague statutes would be unrealistic in its own way. But it does counsel against simply reaffirming Chevron in a vastly different era of government.

This week’s Chevron deference case, and the recent SEC and CFPB cases, are just three examples where a realistic appraisal of history cuts against modern agencies’ favor. The 1935 precedent affirming the constitutionality of “independent” agencies, for example, might have made practical sense (though much less constitutional sense) in its own time, and maybe even as recently as the 1980s and 1990s. It makes much less sense today, when a turbocharged FTC, SEC, and FCC are profoundly more activist, political, and ambitious.

Other aspects of the Supreme Court’s work in administrative law also deserve a realistic reappraisal. In an era when federal agencies and state governors can make and remake rules with head-spinning quickness, and when federal trial courts are much more adept at issuing “nationwide injunctions” that determine federal regulatory policy, it would be unrealistic for the Court not to think hard about modernizing its own procedures for taking cases, issuing decisions, and granting emergency relief in the meantime. In fact, developments during and after the Covid-19 emergency suggest that the justices already are undertaking that procedural reconsideration—carefully, prudently, and realistically.

Oliver Wendell Holmes Jr. famously asserted that “the life of the law is not logic but experience.” Actually, the law needs both. And constitutional logic and administrative experience increasingly point to a new era of reform.

Photo: Douglas Rissing/iStock


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