Chevron strengthened the Executive at the expensive of the other branches.

First, easy deference to agency statutory interpretations incentivizes Congress to adopt—or leave in place—open-ended or vague statutes that operate as broad delegations of legislative authority. This practice is at odds with our government’s basic structural design. The Constitution vests “[a]ll legislative Powers” in Congress. U.S. Const. art. I, § 1 (emphasis added). The core of that legislative power is “to enact laws, or, in other words, to prescribe rules for the regulation of the society.” The Federalist No. 75, at 449 (Hamilton) (Clinton Rossiter ed., 2003). The text of Article I “permits no delegation of those powers.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001); accord Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825) (Marshall, C.J.) (“It will not be contended that Congress can delegate . . . powers which are strictly and exclusively legislative.”). And where the Constitution does permit the Executive to participate in lawmaking, it carefully circumscribes that participation—the President may either approve and sign a bill, or otherwise return it to Congress. See U.S. Const. art. I, § 7. This process of bicameralism and presentment ensures democratic accountability, and largely limits the Executive to executing laws that Congress enacts. While some interpretive judgment may be necessary for the Executive to apply statutes to particular facts, the Constitution does not allow unilateral lawmaking in the Executive Branch.

Modern Chevron doctrine, supported by permissive non-delegation precedent, subverts this prohibition by allowing administrative agencies to enact rules governing private conduct based on strained interpretations of general language in existing statutes. The Court’s non-delegation precedents have been interpreted to allow Congress to delegate vast rulemaking power to agencies, so long as Congress provides some sort of “intelligible principle” to purport to guide their discretion. See generally Gundy v. United States, 139 S. Ct. 2116, 2138–42 (2019) (Gorsuch, J., dissenting) (tracing this development). Shielded from rigorous enforcement of non-delegation principles, agencies have routinely claimed broad authority to adopt new rules governing regulated entities. Congress allows—and, by enacting broad statutes, even invites—agencies to do so because many courts applying Chevron do not carefully analyze whether an agency’s interpretation of a statutory provision comports with the correct reading of that provision. Instead, courts all too quickly find “ambiguities” in statutory provisions – and then readily conclude that agencies’ interpretations of such provisions are “reasonable.” See, e.g., Pereira, 138 S. Ct. at 2120–21 (Kennedy, J., concurring).

In practice, this has meant that the Executive Branch can sidestep Congress and accomplish many policy objectives through agency rulemakings and enforcement actions without authorization by Congress. Cf. Biden v. Nebraska, 143 S. Ct. 2355, 2374 (2023) (“The Secretary’s assertion of administrative authority has conveniently enabled him to enact a program that Congress has chosen not to enact itself.” (brackets and quotation marks omitted)). And Congress, for its part, is incentivized to write statutes that deflect political heat and judicial scrutiny, knowing that agencies can seize upon vaguely worded or poorly drafted provisions to adopt rules that enjoy unique leeway in the courts and will still be treated as having the “‘force and effect of law.’” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015) (citation omitted). The combined effect of these strategic interests reverses the constitutional allocation of legislative power: The Executive becomes the primary engine of new “laws,” and—so long as the President supports those decisions— future congressional majorities cannot undo them without mustering a supermajority to enact new legislation that can override the President’s veto. Particularly in a gridlocked government, that “check” on Executive lawmaking power is cold comfort for regulated entities.