In Administrative Law class today, we talked about deference. Sounds boring, right? If you understand what’s at stake, it isn’t.

What Is Deference?

In cases like Chevron, Barnhart, and Seminole Rock, the Supreme Court announced many years ago that it would defer to an agency’s interpretation of a statute or regulation, under certain circumstances.

The Court’s deference cases recognize that agencies have special expertise in the subjects they regulate — that’s the whole point of agencies, really — and the courts should generally let them fill in the gaps when a statute or regulation doesn’t quite cover the situation at hand.

Relentless-ly Seeking an End to Chevron

Conservative legal thinkers have long sought to put these deference doctrines out to pasture. Agencies make political decisions, they argue, that the Constitution envisioned would be made by Congress. Plus, they say, judges who defer to agencies undermine the edict of Chief Justice Marshall in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is.”

Progressives have mostly resisted this. Maybe, as some conservatives argue, they want to push through legal change that a democratic majority wouldn’t get behind.

That approach has democratic costs, but progressives don’t have a patent on it. I’ve previously argued that conservatives did this, too, when they rushed through regulations to get GMO products to the market fast, leading to a backlash by consumers who never heard about them until they were eating them.

But maybe some folks favor Chevron deference because they see who controls Congress — or more specifically, in the present moment, who fails to let anyone control it. To a lot of us regular people out here, both left- and right-leaning, the shenanigans in Congress don’t look like democracy. They look like dysfunction.

The Supreme Court had already accepted a test case this term on whether to overrule Chevron, a case called Loper Bright Enterprises v. Raimondo. But Justice Ketanji Brown Jackson had to recuse herself in that case because of her work on a lower court that heard it. So now the Court has granted cert in a similar case, called Relentless, Inc. v. Department of Congress. The Court will hear the two cases together in January and probably hand down a decision in June.

How Powerful Do You Want Your President?

Progressives who fear the demise of Chevron may want to consider a larger context. Many federal agency officials have traditionally had some measure of independence from the president (although the exact boundaries of that independence have been debated since the regulatory state began). Consider independent executive agencies like the FCC and the NLRB, which have multiple commissioners or members at their head who are balanced by political party and serve set terms unless they commit malfeasance or a neglect of duty.

The Trump administration launched a concerted effort to erode the independence of executive agencies. Under the “unitary executive theory” (which long predates Trump), only the president is directly elected by the people, and therefore the president should have full control over the actions of all executive agencies, including the right to appoint whomever he wants, to direct their actions, and to remove them for any reason. A group of Trump supporters continues to engineer a vision of the unitary executive with the vision of an all-powerful President Trump.

With Chevron deference in place, courts (lower courts, at least) must leave agency actions in place if the statute or regulation the agency acted under was ambiguous and if the agency’s interpretation was reasonable. In a unitary executive universe, a judiciary governed byt the Chevron doctrine would lack robust power to limit an overweening president.

The Devil You Know

This may not assuage all progressive concerns. With a conservative majority on the Supreme Court and recent a willingness by the justices to ignore stare decisis, the end of Chevron might look like a perfect trifecta for Tyranny by Trump.

But the Supreme Court can only hear about 100 cases per term. The federal district courts and courts of appeals hear thousands, and those courts, taken as a whole, are much more balanced in terms of both political ideology and jurisprudential tendency. As long as Chevron remains the law, those judges will be less free to act as a check on an executive with turbocharged powers.

In that universe, perhaps a judicial department that freely says what the law is could be a good thing for political accountability and balance, even for those who prefer progressive policies.