Is the U.S. Supreme Court Becoming Hostile to the Administrative State?

Abstract

Since the mid-1930s, the U.S. Supreme Court has been broadly supportive of the rise of the modern “administrative state.” In its decisions that have allowed Congress broad leeway in delegating quasi-legislative and quasi-adjudicative powers to executive agencies, permitted the creation of independent agencies, curbed judicial second-guessing of agency procedural choices, and, above all, extended broad deference to agency interpretations of their own statutes and regulations, the Court has been supportive of federal agency power and discretion. But this may be changing. In just the last few years, at least five of the current Justices have expressed, or joined expressions of, strong opposition to several of the key pillars of the modern administrative state — sometimes using strong and alarmist language. This essay reviews this shift and raises questions as to what it might portend.