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Document Type

Article

Publication Date

Summer 2020

Publication Citation

95 Indiana Law Journal 923 (2020)

Abstract

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

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 New

Deal.

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

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