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The Ideological Warfare Behind the Attack on Chevron Deference: Part 3

Responsive Government Courts Defending Safeguards

This post is the third in a three-part series. Read Part 1 here. Read Part 2 here.

As discussed in yesterday’s post, the contemporary conservative movement is prepared to use legal battles over esoteric administrative law doctrines, such as Chevron deference, as a tool of ideological warfare. Importantly, though, these battles present progressives with a great opportunity to engage at the ideological level as well. After all, progressives have been busy developing their own competing vision of what our constitutional democracy should look like. They should seize the opportunity presented by the fight over Chevron deference’s future to articulate and advance that vision.

First, progressives should continue building and advancing a compelling vision of the modern administrative state — one that is robust, responsive, and inclusive, and our best shot at crafting a government that is truly of the people and for the people — as a part our constitutional democracy. The maintenance of Chevron deference would be critical to realizing this vision since it would prevent activist judges from usurping the appropriate authority of agencies.

Such a vision should reflect a commitment to fulfilling the full democratic potential of the administrative state by ensuring meaningful participation opportunities for members of the public — particularly people from structurally marginalized communities — in every stage of policy implementation. It should emphasize the value of the administrative state in addressing oligarchic threats by providing durable institutional mechanisms by which to continually redistribute political power to the people. It should likewise provide an account of the administrative state’s role in defending our democracy against the kinds of authoritarian threats represented by Project 2025, the comprehensive policy blueprint currently being developed by a constellation of conservative think tanks to help a future president with reactionary and autocratic aspirations.

Finally, it should discuss the role that the administrative state can play in rebuilding strong bonds of social trust and a shared sense of destiny among the American people. Not only will this set down a stronger foundation for our democracy; it would also provide critical momentum for addressing social problems that have plagued the United States since the founding, such as systemic racism.

Second, the defense of Chevron deference also provides a great vehicle for progressives to push back against the prevailing but incomplete understanding of our constitutional framework as one creating a “limited government.” Instead, the disputes at the heart of many Chevron cases underscore the significance of current efforts to recover an alternative constitutional theory — one that has prevailed throughout much of U.S. history — that holds that the federal government has in fact an affirmative obligation to act under certain circumstances. These include situations in which concentrations of economic or political power pose an unacceptable risk to the effective functioning of our democracy.

As noted above, a robust, responsive, and inclusive administrative state can offer a powerful institutional safeguard against emergent oligarchic threats. The flexibility that Chevron deference offers to administrative agencies in responding to new and unforeseen circumstances is a crucial prerequisite for performing this function as effectively as possible. At the same time, this understanding would provide a strong constitutional basis for Chevron deference itself. Indeed, the notion of implicit delegations by Congress to agencies would stand on much firmer footing.

Finally, progressives should continue the work of recovering the historic tradition of a more democratic approach to constitutional interpretation to replace the ahistoric concept of judicial supremacy. In practice, this means restoring Congress, with its democratically accountable members, to its former role as an authoritative voice on constitutional questions.

Our country’s track record with judicial supremacy, particularly in recent years under the Roberts Court, offers a disturbing preview of what a future without Chevron is likely to hold. Activist judges will be eager to exploit the free rein provided to them to substitute their policy preferences for that of the public’s as reflected in agency implementation of congressionally enacted laws. Conversely, many of the arguments for re-democratizing constitutional interpretation parallel those for preserving Chevron deference. As such, the pursuit of both goals could be part of a broader progressive project to “reclaim the courts” for the people.

It’s become almost cliché to suggest that, at this historical juncture, the United States faces a stark choice between continuing on as a democracy (albeit imperfectly) or backsliding further into illiberal oligarchy or, worse still, authoritarianism. The current war over ideology, and the imprint it stamps on American belief systems, will in no small way affect which path we head down. As such, it should be no surprise that conservatives have seized on the fight over the future of Chevron deference to engage in this war. Importantly, though, this fight likewise offers progressives a vital opportunity to present the public with a more compelling vision of our constitutional future.

Responsive Government Courts Defending Safeguards

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