Democracy, Chevron Deference, and Major Questions Anti-Deference

In 1984, the Supreme Court in its Chevron opinion invoked democratic values to help justify holding that courts should defer to an agency’s reasonable construction of a statute that it administers. In 2022, in West Virginia v. EPA, the Court invoked democratic values to help justify the major questions doctrine (MQD), which requires clear congressional authorization for agency claims of major regulatory power. Democracy, it seems, requires deference and anti-deference for agency statutory interpretations. Or maybe not.

This Article submits that the democracy talk of Chevron and West Virginia is implausible, misleading, and may have caused the law to evolve in needlessly confusing and controversial ways. Had the Court skipped its democracy talk in Chevron, the resulting opinion might have focused more cleanly on the best and most persuasive justification for deference in this context, agency expertise. This might have fostered a simpler, clearer approach to deference, free from Chevron’s epicycles and less vulnerable to attack based on abstractions from separation-of-powers principles that threaten Chevron’s imminent demise. Without the help of democracy talk in West Virginia, the Court would have found it more difficult to justify the MQD—and a world without this judicial power grab would be a better one.