95 Indiana Law Journal 923 (2020)
In a typical year, Congress passes roughly 800 pages of law—that’s about a seveninch
stack of paper. But in the same year, federal administrative agencies promulgate
80,000 pages of regulations—which makes an eleven-foot paper pillar. This move
toward electorally unaccountable administrators deciding federal policy began in
1935, accelerated in the 1940s, and has peaked in the recent decades. Rather than
elected representatives, unelected bureaucrats increasingly make the vast majority
of the nation’s laws—a trend facilitated by 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 nondelegation doctrine, severely limit Chevron, and roll back
Humphrey’s Executor. With each decision, the Court will shift decision-making 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
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 New
What follows is an exploration of how, and why, this change is coming soon.
"The Kavanaugh Court and the Schechter-to-Chevron Spectrum: How the New Supreme Court Will Make the Administrative State More Democratically Accountable,"
Indiana Law Journal: Vol. 95:
3, Article 7.
Available at: https://www.repository.law.indiana.edu/ilj/vol95/iss3/7