It’s true that federal agencies in early America were smaller and their operations less extensive than the administrative state of today. But the early agencies still took charge of mission-critical matters. And while they were becoming an important part of American life, federal courts’ oversight of them was extremely limited — “anemic by modern standards,” as legal scholar Jerry Mashaw has put it. Back then, few people went to court to challenge federal agencies’ actions. And those that did were trying to get compensation or orders for officials to do their jobs, not trying to get courts to strike down agencies’ regulations.
It was only in the late 19th and early 20th century that the Supreme Court experimented with closely supervising agencies. By the middle of the 20th century, however, the Court had returned to something like first principles it drew from early case law. In 1984, the court created “Chevron deference,” which comes from the Supreme Court’s decision that year in Chevron v. Natural Resources Defense Council. More or less, it tells federal courts to defer to agencies’ reasonable interpretations of laws they’re in charge of implementing.
However, the corporations bringing the upcoming challenges to Chevron — Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo — are hoping that the Court ignores the actual history of federal agencies in the early republic and beyond. They want the Court’s conservative supermajority to eliminate agency regulations — and maybe agencies themselves.
But the history just isn’t on their side. Chevron deference comes out of the country’s enduring tradition of federal agencies interpreting the law when they need to. The court shouldn’t use fake 19th-century history to strike it down.
For these cases, the history is clear: in the founding era and well beyond, federal courts rarely checked agencies’ activities. Claiming otherwise would mean either ignoring the record or abandoning its prized concept of “originalism.” Indeed, if the Court uses the story of the early judicial review to determine this decision, the justices wouldn’t be able to give the Chevron challengers what they want — removing the regulation they dislike from the books — because that’s not what the federal courts did in the 19th century.
The Court can’t find a warrant for undoing Chevron deference in a full account of American history. It isn’t consistent with the tradition of deference that stretches from the founding to the present day.