LET'S UNDO THE FATAL CONCEITS.

As long as I'm in a taking-dim-views mood, let's recall, dear reader, why Technocracy Fails.  "Technocrats, you see, are pretty good at pulling the right policy levers, and Wise Experts can always design legislation and write the subsequent rules to Improve The General Welfare."

Alas, in Washington, a lot of that designing and rewriting slipped from the hands of The People's Representatives to what the Militant Normals like to call "unelected bureaucrats," and Congress was fine to leave the grunt work to others, and Separation of Powers wasn't something for courts to worry about.

I could set this post to a Sixties rhyming chant: Two! Four! Six! Eight! Smash the Administrative State!  We've already called attention to the overreach.  "The Environmental Protection Agency allocation tsar recently set hand and seal to ukases requiring multiple changes in the personal automobiles and in the commercial trucking business."

Perhaps, notes Reason contributor Veronique de Rugy, not for much longer.  "The Supreme Court May Be on the Brink of Radically Restricting Bureaucrats' Power."  The problem, she notes, combines legislative lassitude with specialist ambition.

The United States Constitution vests all legislative powers in Congress. Yet, over the past century, we've witnessed a disturbing trend of legislators increasingly delegating much of the authority to set the laws that govern the land to the executive branch, which includes unelected officials at administrative agencies. This undermines democratic accountability, contributes to government bloat and abuse of powers, and disrupts the balance of power crafted so carefully by the Framers.

Reasserting congressional authority is essential for maintaining a balanced government and ensuring that policies reflect voters' wishes. It's also the best hope for promoting economic freedom and growth. Unfortunately, getting Congress to stop evading its authority is an uphill battle. After all, we're talking about an institution that systematically fails to do another of its primary jobs by passing legitimate budgets on a timely basis.

Nevertheless, there is some light at the end of the tunnel, as the Supreme Court might soon stop being so deferential to executive branch agencies in interpreting the laws set by Congress.

In doing so, the Court is going to upset both Business as Usual and the teaching and research plans of political economists.  For Business as Usual has meant Congress not concerning itself with the details of regulation (craft a bill with an appealing title, put "It is the intent of Congress that ..." in the preamble, and conclude each section with "The Secretary shall issue regulations ..., which means, in practice, some task force of newly-hired Master of Public Administration types draft the regulations) in part because getting the details right is work (can you imagine Jasmine Crockett and Marjorie Greene on fisheries or retention toilets on trains) and in part because years of Academic Accomplishments argue in favor of these Issues as Too Subtle for Laymen.  (Thus, too, did the reading of the entrails of chickens become Holy.)  Moreover, there was enough in the way of those academic arguments to the effect that courts were of limited utility in balancing the conflicting claims, and thus best defer to those rookie public officials, who ... are unelected bureaucrats.)

What happens, though, when it all breaks down?

In theory, the deference allows agencies to implement complex statutes. In practice, it limits the judiciary's proper role in holding the other two branches of government responsible for carrying out and sticking to their constitutional duties. One result is too much discretionary power exercised by agencies who were envisioned to enforce, rather than create, the law.

Some plausibly argue that the concentration of power placed in the executive branch by Chevron deference leads to excessive, overreaching regulation by agencies with wide latitude to essentially set policy. Another argument against Chevron is that it encourages Congress not to do its job. Because members of Congress understand that courts will defer to agencies, they can write vaguely worded statutes, knowing that the agencies will fill in the details without much judicial oversight. It can also remove the grounds for judiciary recourse on behalf of individuals whose lives and liberties are negatively affected by regulators' outreaches.

Oh, but that's not going to happen. That's why we have the Welfare Economics Paradigm.

And you thought working through the implications of critical theory was hard?  I wonder how many of those young people are familiar with even the vulgar manifestations of the Welfare Economics Paradigm, let alone with the structure-conduct-performance approach to entrepreneurship and competition policy, or with the notion of regulatory capture.

Yes, it was so easy to provide those future bureaucrats with a reference manual.  Competitive markets allocate resources efficiently: there are competition policies to address conspiracies in restraint of trade, monopolization, merger to monopoly, and where monopoly seems inevitable, to franchise and regulate the monopoly.  You say there's a missing market?  We can draw up a subsidy or a tax? You say the activity isn't productive?  We have cost-benefit analysis for that.  It all works to expand the power of the executive, as at any time a president can offer suggestions to his secretary who tells a guy who tells a guy who tells the new arrivals to draft a revised regulation.

Perhaps current economics departments are equipping those future bureaucrats with an expanded set of tools, under which the Welfare Economics Paradigm is no longer magical.  Otherwise Professor de Rugy is likely to be disappointed.

One hope is that agencies will exercise more discretion when interpreting their own powers and mandates under existing statutes. A second hope is that Congress responds by drafting statutes with more care and precision, thus being clearer—for agencies and the public—about what it intends and doesn't intend. Finally, there is also the possibility that we could look back at some regulatory abuses passed under the veil of the Chevron >deference and challenge them.

The bottom line is that we might be only one Supreme Court decision away from Congress being obliged to write better and more explicit statutes than it usually does. This obligation doesn't seem like a lot. Some scholars believe that hopes for markedly improved lawmaking post-Chevron are wishful thinking. But considering Congress' now-routine cowardice at doing its job, I will take even a little hope over despair.

That ruling has not yet been received, and there are people who will be disappointed should Chevron deference end.  That might be tomorrow's economics lesson.