The Administrative State at the Crossroads
The decades-long conservative legal project against administrative power has finally arrived at the Supreme Court. What it replaces, if anything, is the most consequential open question in American governance.
On June 28, 2024, the Supreme Court of the United States issued its decision in Loper Bright Enterprises v. Raimondo, overturning Chevron U.S.A., Inc. v. Natural Resources Defense Council — a forty-year-old precedent that had structured the relationship between federal courts and federal regulatory agencies, and in doing so had made possible the modern administrative state as a functional institution. The majority opinion, written by Chief Justice John Roberts, held that courts must exercise independent judgment in determining the meaning of ambiguous statutory language, rather than deferring to agencies' reasonable interpretations of the statutes they administer.
This was the moment the conservative legal movement had been building toward for decades. It was the culmination of an intellectual and organizational project that began at the Federalist Society's founding in 1982, ran through the development of originalist jurisprudence, and gathered decisive institutional momentum with the appointments of Justices Gorsuch, Kavanaugh, and Barrett. The project had always had a theory: that the administrative state, as constructed by the New Deal and expanded by the Great Society, was constitutionally illegitimate — a violation of the separation of powers that had transferred legislative authority to unaccountable bureaucracies and judicial authority to executive branch agencies with interests in the outcomes they were adjudicating.
That theory has now substantially prevailed. The question it leaves unanswered — what happens next — is the one that has occupied administrative lawyers, policy analysts, and constitutional scholars since the ruling, and whose answer will determine whether the regulatory state can continue to perform its fundamental functions in a complex modern economy.
The Intellectual History
The conservative legal movement's critique of the administrative state is not primarily a practical argument. It is a constitutional and philosophic argument, developed with considerable sophistication over forty years, and it deserves to be taken seriously on its own terms before its practical consequences are assessed.
The foundational complaint is about democratic legitimacy. Article I of the Constitution vests all legislative power in Congress. The administrative state, critics argue, has inverted this arrangement: Congress passes broad statutory mandates (protect public health; ensure fair labor practices; prevent unreasonable risk from toxic substances) and then delegates to agencies the practical work of making the rules that give these mandates content. Those rules — EPA regulations governing permissible emissions levels, OSHA standards for workplace safety, FDA guidelines for drug approval — are, the critics argue, effectively legislation. They have the force of law. They bind private actors. They were not enacted by Congress. They were made by officials who are appointed, not elected, and who are insulated from direct political accountability by civil service protections.
The nondelegation doctrine, which prohibits Congress from transferring its legislative authority to the executive without an "intelligible principle" guiding the delegation, existed in constitutional law long before the New Deal but was effectively moribund: the last time the Supreme Court struck down a federal statute on nondelegation grounds was in 1935, in two cases involving New Deal legislation that were decided the same year as Schechter Poultry Corp. v. United States. For eighty years, the Court sustained delegation after delegation, accepting increasingly vague intelligible principles. The nondelegation doctrine became, in practice, a limit that the modern administrative state easily met.
Justices Gorsuch and Thomas have argued, in separate opinions, for reinvigorating the nondelegation doctrine — for actually enforcing the intelligible principle requirement in a way that would invalidate many of the broad statutory mandates on which the regulatory state depends. The Court has not yet gone this far; Loper Bright was an administrative law case, not a nondelegation case. But the intellectual trajectory of the conservative legal project points clearly toward this destination.
The Chevron Architecture
To understand what overturning Chevron means, it helps to understand what Chevron was actually doing and why it had lasted forty years.
Chevron arose from a dispute about how the EPA interpreted the word "source" in the Clean Air Act — whether a "source" of pollution meant an individual facility within a plant or the plant as a whole. This kind of statutory ambiguity is not unusual; it is the normal condition of broad environmental, labor, and financial legislation. Congress cannot anticipate every application of a general mandate when it drafts the statute. Language that is clear at the level of general principle becomes ambiguous when applied to specific factual situations that Congress did not specifically consider.
The Chevron framework resolved this systematically: if a statute is ambiguous on a question, and the agency responsible for administering the statute offers a reasonable interpretation, courts should defer to the agency's interpretation. The theory behind this was both institutional and democratic. Agencies have technical expertise that generalist federal judges lack. Congress, in creating the agency and assigning it regulatory authority, implicitly authorized it to make interpretive choices within the statute's scope. Deference to agencies was a kind of proxy for deference to the legislative purpose.
For forty years, Chevron deference was the organizing principle of federal administrative law. It produced a body of regulatory practice that, for all its imperfections, was coherent in its basic logic: Congress set broad goals, agencies developed implementing rules through notice-and-comment rulemaking, courts reviewed those rules for procedural regularity and for fidelity to the statute, but deferred to agencies on the interpretive questions about what the statute meant where it was ambiguous.
Loper Bright ends this. In its place, Roberts' majority holds that courts must determine for themselves what ambiguous statutes mean, using their best judgment about congressional intent, statutory text, structure, and relevant considerations. This is not, on its face, an unreasonable position. Courts determine the meaning of statutes as a routine matter; in much of administrative law, there was never Chevron deference, and courts resolved statutory questions independently. The question is what happens in the large class of cases where agencies' interpretations of complex technical statutes have structured regulatory regimes that the country has relied upon for decades.
The Major Questions Doctrine
Loper Bright is one pillar of the current administrative law revolution. The other is the major questions doctrine, articulated by the Court in West Virginia v. EPA (2022), which held that when an agency claims authority to regulate a matter of major economic or political significance, it must point to clear congressional authorization for that specific authority.
The practical consequence of the major questions doctrine is harder to predict than Loper Bright, partly because its scope is inherently fuzzy. What is a "major" question? The Court in West Virginia treated EPA's authority to restructure the national electricity grid as major; the authority to set emission limits for existing power plants was apparently not. This distinction is not self-applying. It requires courts to make judgments about the significance of regulatory actions that are inherently political judgments disguised as legal ones.
What the doctrine has already done — in the challenges that followed West Virginia and in the regulatory decisions made in its anticipation — is create a chilling effect on ambitious regulatory action. Agencies that might previously have read broad statutory authority as permitting bold interpretive steps are now calculating whether those steps will be characterized as "major questions" and struck down. The FDA's tobacco regulations, the SEC's climate disclosure rules, the FTC's competition policy — all of these have been or could be challenged under major questions doctrine as exceeding clear congressional authorization.
The combined effect of Loper Bright and the major questions doctrine is to shift enormous amounts of interpretive authority from agencies to courts. This is presented as a restoration of proper legal hierarchy — courts deciding legal questions, as courts should. But the transfer is not from agencies to a neutral legal authority. It is from agencies with technical expertise and democratic accountability through the President to federal judges with life tenure, who are systematically less expert in the regulatory domains they are now being asked to second-guess, and who have their own institutional perspectives that will inevitably shape their judgments.
The Question of the Positive Vision
The most searching critique of the conservative legal project against the administrative state is not that it is wrong about the constitutional concerns it raises. It may well be correct that Congress has delegated too broadly, that agencies have in some cases exceeded their statutory authority, that judicial deference enabled regulatory overreach. These are serious arguments.
The critique is that the project has been far more developed on what it opposes than on what it would replace. What is the positive theory of governance that follows from dismantling Chevron deference, reinvigorating the nondelegation doctrine, and limiting agency authority to clearly specified statutory mandates?
The optimistic answer, offered by some legal scholars associated with the project, is that the answer is Congress. If agencies cannot make the rules, Congress must. This would require Congress to write more specific statutes, to actually make the hard policy choices that it has been delegating to agencies for decades, to take responsibility for the regulatory outcomes that currently flow from agency interpretation. In this vision, the judicial rollback of administrative power produces a democratic reclamation of legislative authority.
This vision is pleasant and implausible. The United States Congress in 2026 is not an institution capable of passing specific, technically sophisticated regulatory legislation in response to the regulatory gap created by judicial rollbacks. It is an institution that has not passed a major environmental statute in three decades, that takes years to reauthorize routine appropriations, and that is structurally incapacitated by the combination of polarization, the filibuster, and the campaign finance environment that makes members responsive to donor priorities rather than legislative ones. The theory that Congress will fill the gap left by a constrained administrative state assumes a Congress that does not exist.
The more honest answer from some conservatives is that the goal is not a more active Congress but a less active federal government — that the regulatory retrenchment enabled by these doctrines is not a transitional problem to be solved by better legislation but an intended outcome. On this view, if the EPA cannot regulate power plant emissions because Congress hasn't clearly authorized it, and Congress won't clearly authorize it, then power plants go unregulated, and that is, on balance, preferable to administrative agencies making regulatory choices beyond their explicit mandates.
This is at least an honest position, and it should be evaluated on its merits. What are the merits of a federal regulatory apparatus that cannot address problems that require regulatory attention — not just environmental regulation but financial stability, food safety, drug efficacy, workplace safety, telecommunications infrastructure, securities markets — except through specific, detailed congressional authorization that the contemporary Congress cannot produce?
What Governance Requires
The case for the administrative state has never been primarily about constitutional convenience, though convenience is part of it. The case is that modern economies are complex in ways that require ongoing regulatory management that legislation alone cannot provide. The financial instruments that threatened systemic stability in 2008 did not exist when the Securities Exchange Act was written in 1934. The air pollutants that the EPA was regulating in West Virginia were not specifically enumerated by the 1970 Clean Air Act. The information security vulnerabilities that the FTC addresses were not contemplated when the FTC was created in 1914. The complexity of the economy exceeds the capacity of any legislative text, however detailed, to anticipate. Agencies exist to fill that gap on an ongoing basis, adjusting to new information, new technologies, and new problems, within the framework of congressional mandates.
The Supreme Court's administrative law revolution is dismantling the institutional apparatus that made this ongoing adjustment possible. It is doing so without a credible theory of what replaces it. The courts that will now determine for themselves what ambiguous statutes mean are not equipped, by training or institutional design, to engage in the kind of technical and empirical analysis that effective regulation requires. The Congress that is supposed to step in and provide clear authorization has demonstrated no capacity to do so.
What this means in practice is not a more democratic administrative state. It is, in many domains, a less functional one — a regulatory apparatus that can be paralyzed by litigation, that cannot adapt to new problems, and that faces a court system exercising judgment on technical regulatory questions without the expertise or accountability to do so well. The conservative legal movement built a sophisticated project for dismantling the administrative state. What it built is no substitute for it.