Just a few days ago, the Supreme Court struck down the 1984 decision Chevron v. Natural Resources Defense Council. The practical consequences of that move will unfold over the coming years, but the philosophical implications of it are already clear and consequential.
The end of “Chevron deference” is a major step toward restoring what Alexis de Tocqueville, the most influential observer of American political life, identified as the secret to the health of American society.
Chevron deference, Forbes writes, meant that “if there was any ambiguity or question — no matter how flimsy or far-fetched — about what a law actually meant, the courts had to defer to the judgement of the agency in question.” This deference led government entities to go on a 40-year “binge of creating rules and regulations that were hard to challenge in court.”
The philosophical question raised by Chevron deference and its demise is the choice between John Rawls and John Locke. John Rawls, the 20th century Harvard professor who captured the essence of 20th century liberal thought, held that the most important factor in protecting freedom and justice was how governments make decisions. In contrast, John Locke, the 17th century English philosopher who captured the way of thinking about politics that guided the American founders, held that the most important factor in protecting freedom and justice was what governments are permitted to make decisions about.
Rawls thought that we want politics to be neutral — not guided by partisan ambitions, justified in ways that are in principle acceptable to all people. If that’s the goal, it might make sense to have the (supposedly) neutral and non-political experts at the government agencies make lots of political decisions about all sorts of things, as Chevron empowered them to do.
Locke thought we want politics to be limited — the laws backed by the sword of the state should touch only those areas of life that they absolutely must, leaving citizens a wide sphere of freedom in which to responsibly build a world together.
If that’s the goal, it would be a disaster to allow government entities, however well-intentioned, to multiply rules and regulations, especially vague ones that leave unclear exactly what citizens and businesses can and cannot legally do — at least until the regulators show up with an outlandish theory about how you’ve violated a dubious rule, which the court then rubber stamps, citing the Chevron ruling.
The American Founders did not harbor John Rawls’s illusion, that it might somehow be possible to govern from some kind of neutral position. Knowing that those in power will wield it as they see fit, the Founders set up a constitutional framework designed to allow those in power to make decisions about only a limited set of items.
And that’s more or less how America operated for its first century and a half. There wasn’t a steady build-up toward the expansive administrative state we have today. Instead, there was a sharp ideological turn during the early 20th century, when German-educated “progressives” self-consciously sought to displace Lockean liberalism with Hegelian bureaucracy.
They knew the American constitution made such a change legally dead on arrival, so they worked around the margins, and especially through the courts, beginning with the famous “switch in time that saved nine,” when in 1937 Supreme Court Justice Owen Roberts, under pressure to avoid court-packing, suddenly decided to begin permitting the progressive policies enacted by the political branches of the government. He had previously joined other justices in rejecting those policies as unconstitutional.
The “switch in time” in 1937 set a new trend of Supreme Court justices turning a blind eye to the construction and constant expansion of an administrative state, a trend that culminated in the 1984 Chevron ruling. It codified the Supreme Court’s decision to stop policing the limits of the political authority of the political branches, instead deferring to the supposed neutrality of expert bureaucrats. It was the triumph of Rawls over Locke.
Now Chevron is dead.
In his magisterial “Democracy in America,” Alexis de Tocqueville praised 19th century America for its administrative decentralization. In the America he observed, America prior to the “switch in time,” the federal government wielded its power in accordance with the convictions of those who ran it, but it wielded that power over a very limited scope of American life.
And, Tocqueville observed, administrative decentralization produced in Americans precisely those qualities we lack today: They cared about “their country’s interests as if it were their own” and, rather than appeal to “public authority for its help” in advancing those interests, they felt themselves sufficient to gather other individuals to undertake enterprises for the welfare of society.
Administrative decentralization was the secret to a healthy society in which people took responsibility upon themselves to solve shared problems and pursue common goals.
What Tocqueville witnessed was Lockean liberalism working. When the government makes decisions about fewer spheres of life and the citizens make decisions about more, our lives are less politicized and our politics are less polarized. The end of Chevron is a step toward that kind of America.
Graedon H. Zorzi is assistant professor of theology and philosophy at Patrick Henry College and visiting fellow with the Mercatus Center’s program on pluralism and civil exchange.