The Blurring of Constitutional Roles

For forty years, the doctrine of Chevron deference (from Chevron U.S.A. v. NRDC, 1984) compounded the delegation problem. Under Chevron, when a statute was ambiguous, courts deferred to the agency's interpretation rather than determining the statute's meaning independently. This gave agencies not just the power to write rules, but effectively the power to interpret the scope of their own authority. [2]

The implications were profound. An agency could assert that a vague statutory phrase authorized a sweeping new regulation, and courts would defer unless the interpretation was "unreasonable." This created a one-way ratchet: agencies could expand their authority through creative interpretation, and courts would rubber-stamp the expansion. Congress had little incentive to write clearer statutes; ambiguity served everyone's interests except the public's. [5]

In Loper Bright Enterprises v. Raimondo (2024), the Supreme Court overturned Chevron in a landmark 6-3 decision. Chief Justice Roberts held that courts, not agencies, bear the responsibility to interpret the law, a principle he described as fundamental to the constitutional design. The decision was celebrated by those who saw Chevron as enabling bureaucratic overreach, and criticized by those who feared courts would lack the technical expertise to interpret complex regulatory statutes. [1]

Gary Lawson's influential 1994 Harvard Law Review article declared that "the post-New Deal administrative state is unconstitutional," arguing that the combination of legislative, executive, and judicial powers exercised by federal agencies violates the separation of powers at its most fundamental level. Agencies write rules (legislative power), enforce them (executive power), and adjudicate disputes about them (judicial power), all within a single institution. [4]

Thomas Merrill traces the rise and fall of Chevron deference as a symptom of a deeper problem: the modern government simply does not fit the constitutional framework. The Founders designed a government of limited, separated powers. The administrative state concentrates vast, overlapping powers in institutions that answer primarily to the president rather than to Congress or the courts. [5]

The result is a governance structure where accountability is nearly impossible to assign. When a regulation harms citizens, they cannot hold the responsible officials accountable through elections. The rule was written by career bureaucrats, interpreted by agency lawyers, and enforced by agency investigators. Congress blames the agencies. The agencies cite their statutory mandate. The president claims executive discretion. No one is responsible.

The Federal Reserve was the first modern institution to exercise powers that crossed traditional branch boundaries: setting monetary policy (arguably legislative), regulating banks (executive), and adjudicating compliance (judicial), all within a single entity operating with minimal democratic oversight. It established the template for the administrative state that followed. [4]

The income tax funded the explosive growth of the federal bureaucracy. Without the revenue the 16th Amendment provided, the regulatory agencies that now exercise quasi-legislative power simply could not exist at their current scale. The administrative state requires enormous resources (staff, offices, enforcement personnel) and those resources come from income tax revenue. [3]

The 17th Amendment removed the body most invested in maintaining clear federal boundaries. State-appointed senators had a direct interest in ensuring that the federal government stayed within its constitutional lane, because their appointing bodies bore the costs of federal overreach. Without that structural check, Congress was free to delegate its authority to agencies, the president was free to expand executive power through those agencies, and the courts deferred to both under Chevron. [1] [5]

The cumulative result is a government where constitutional roles are suggestions, not constraints. The clear, accountable structure the Founders designed has been replaced by an opaque, unaccountable administrative apparatus. Restoring constitutional role clarity requires not just legal reform but structural reform: rebuilding the incentives that once kept each branch within its proper bounds.