How the Supreme Court could end the ‘Chevron deference’ foolishness

by George Will,

Hyperbole being the default setting in today’s discourse, we are warned that the oral arguments the Supreme Court will hear on Wednesday concern cases that could, some progressive commentators insist, “kneecap” and “take a sledgehammer” to federal agencies. And could end the government’s “capacity to address the most pressing issues of our time.”

This capacity already seems nonexistent. And the people who say that the doctrine of “Chevron deference,” at issue Wednesday, is indispensable to today’s government are actually saying two things: That today’s government is incompatible with the Constitution. And that enabling the former is more important than respecting the latter.

The cases involve four small, family-owned herring fishing companies that have been ordered by a federal agency to pay the cost of a regulation the agency has decreed.

The principle of Chevron deference, first propounded by the court in 1984, is that where legislative language is ambiguous or silent, a court reviewing an agency’s action should defer to the agency if its action is “reasonable.” This expressed progressivism’s core conviction that animates the sprawling administrative state: Modern America’s complexities require minute management by experts, who require — whose expertise justifies — vast discretion barely circumscribed by Congress.

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