What if I told you the Supreme Court often does too little, not too much? That accusation usually comes from liberals who see the judiciary as philosopher-kings enacting social justice over and against the will of a bigoted public. But a conservative case exists for making the same accusation, just on different grounds. For the Right, the court has abdicated too much of its power to the administrative state, letting its interpretations of law function over and above the justices’ constitutional power.

That abdication may be ending. On Monday, the justices added to their docket Loper Bright Enterprises v. Raimondo. The case concerns commercial fishing companies that object to a rule promulgated by the National Marine Fisheries Service. Under the rule, fishing companies must pay the monitors legally required to observe these companies and make sure they are in compliance with federal regulations. The fishing companies argue the agency does not have the authority to make the regulation.

That all might seem rather mundane, even boring, to anyone not involved in the lawsuit. However, to decide the case, the court might strike hard at the administrative state, having agreed to reconsider one of the most important administrative law cases on record — Chevron v. Natural Resources Defense Council. 

That 1984 decision has been at the heart of the judicial abdication to government agencies. It concerned what courts should do when a law appears ambiguous in its meaning about a particular matter. In response, it established what is known as “Chevron Deference.” The doctrine requires courts to defer in those ambiguous instances to government agencies and allow the bureaucracy to interpret the statute so long as the interpretation is “reasonable.”

This deference has created many problems, including stripping the courts of the judicial power to which they have a constitutional right. While courts often find statutes vague, judges have nearly never found agency regulations unreasonable. Thus, most binding interpretations of congressional laws end up coming from the administrators. “Rather than say what the law is,” Justice Gorsuch recently complained regarding Chevron, “we tell those who come before us to go ask a bureaucrat.”

This is part of a broader, deeper problem. Contrary to our constitutional structure, bureaucrats are able to circumvent the separation of powers and combine the powers the Constitution separates: making regulations, enforcing them, and adjudicating disputes regarding them. They defend their legitimacy under the banner of “expertise,” claiming to know better how to make, enforce, and interpret policy than the average judge, congressman, president, or voter.

The other constitutional branches have gone along with this fundamental reordering of our political structure as well. Congress has delegated its legislative power to these agencies through broad, vague laws that leave to the bureaucrats most decision-making. And the presidency has permitted independent agencies to operate outside that office’s duty to ensure proper law enforcement. Together, the three constitutional branches have created and bowed to a monster unknown to our governing document. Chevron Deference, therefore, helps to feed a governmental structure at once more inept at its job and at the same time more prone to tyrannical impulses attending insufficiently limited power.

Many outside the court have called for Chevron’s demise. It is a frequent theme of panels for the Federalist Society, for example. Past litigants before the court have tried to get it to reconsider Chevron for years.

Within the court, several justices have critiqued Chevron and signaled their willingness to curtail, if not overturn, the important precedent. Some decisions, including last year’s West Virginia v. EPA, even have implicitly limited the doctrine’s scope. But this case marks the first time the court will take on the substance of Chevron directly.

The court should seize the opportunity it has presented itself. The justices should reject Chevron Deference as an unconstitutional abdication of the judicial power the Constitution vests in them, not in bureaucrats. There still might be room for some level of deference to bureaucrats on deeply technical matters, especially on matters of health and the environment. But the court must push the judicial branch to work much harder to interpret the law for itself, and Congress to dedicate itself to the important task of nuanced, thoughtful lawmaking. Doing so hopefully will cut away significant power from the agencies. At the same time, it might revive judicial functions that have largely lain dormant for much of the last 50-plus years.

The time for abdication must end. This case is the place to end it.

Adam Carrington is an associate professor of politics at Hillsdale College.