Vive la Deference?: Rethinking the Balance Between Administrative and Judicial Discretion

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.