A central challenge before the Supreme Court is to reconile the growth of the modern administrative state with the rule of law, which generally requires the government to offer its citizens a set of clear and consistent directives. Modern administrative agencies enjoy vast discretion to implement complex schemes, and their power is backed by heavy legal sanctions. These sanctions apply to developers of long-term projects, who need a stable legal regime from start to finish, without being held hostage to the risk of political flip-flops every time agency control passes from Democrats to Republicans, or vice versa.
On this point, a critical Supreme Court rule known as the “Chevron” principle has recently come under sustained attack. Named after the famous 1984 decision in Chevron v. National Resources Defense Council, it holds that when a federal statute is ambiguous under the ordinary rules of statutory construction, a court ought to defer to the interpretation of the statute made by the relevant administrative agency. Chevron is commonly regarded as the rock on which the modern administrative state rests, giving agencies a huge advantage when their activities and regulations are challenged in court. Yet it has been attacked recently by Justice Neil Gorsuch and Judge Brett Kavanaugh as an unprincipled abnegation of the judicial function.
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