Dean Emeritus Ronald A. Cass ·
83 Geo. Wash. L. Rev. 1294 ·
America’s constitutional structure relies on checks and balances to prevent
a concentration of excessive discretionary power in the hands of any individual
governmental official or body, promoting effective government while
protecting individual liberty and state sovereignty. Federal courts have been
sensitive to threats to upend this balance of power where one branch of the
federal government intrudes on powers assigned to another, but less so to
changes that increase federal power overall—including, notably, unchecked
discretionary power of administrative officials. An elastic Commerce Clause
and ineffective nondelegation doctrine leave judicial review an especially important
safeguard, effectively the law’s last chance for restraining official action.
The Chevron doctrine, however, as it has often been deployed, grants
deference to a large number of administrative actions on a fictive supposition
that Congress intentionally conferred discretionary authority for those actions.
Although the doctrine is defended, reasonably, as constraining a different sort
of discretionary government authority—resting in the hands of judges rather
than administrators—Chevron deference has reduced the effectiveness of judicial
review as a limitation on administrative power. This Essay addresses the
changes in constitutional limits on official power, the function of the Chevron
doctrine, and potential alternatives as a check on discretionary administrative
power. It concludes that a stronger requirement of actual grants of discretion
is more legally defensible and more consistent with the rule of law.
