This post is one half of a two-part series. Click here to view the post on Loper Bright and the Future of the Republican Coalition.

The Supreme Court’s decision to eliminate Chevron deference in Loper Bright Enterprises v. Raimondo was widely seen as a setback for pro-regulatory politics. As Justice Elena Kagan argued in dissent, Chevron was essential to “modern government, supporting regulatory efforts of all kinds.” Its demise, she warned, would make it more difficult for the government to “keep[] air and water clean, food and drugs safe, and financial markets honest.” Liberal commentators agreed. Loper Bright, they predicted, would “fundamentally transform major aspects of the health, safety and well-being of most Americans” and increase the odds that “[a]gency rules to protect the public’s health and safety . . . [would] be overturned.”

Responsive to these worries, congressional Democrats quickly introduced the “Stop Corporate Capture Act,” which would amend section 706 of the Administrative Procedure Act to conform to the famous Chevron two-step. As Senator Cory Booker explained, codifying Chevron’s instruction to defer to an agency’s reasonable interpretation of an otherwise-ambiguous statute would help to guarantee agencies’ ability to “protect public health and safety, and tackle the climate crisis while ensuring a clean environment for our communities.”

Democrats did not always agree on the value of judicial deference. In the 1970s, Arkansas senator Dale Bumpers championed legislation to prohibit deference to agency interpretations of ambiguous statutes, arguing that overregulation, aided by courts’ unduly deferring to agencies on legal questions, was significantly burdening the economy. Many conservatives within the party agreed. Florida senator Lawton Chiles, for instance, defended Bumpers’ proposal out of concern that “the paperwork, the rules, and the redtape [sic] have grown greatly.” Regulators, he felt, should have to defend themselves in “court and show that they know what they are talking about.” These voices were joined during the Reagan era by prominent liberals like Public Citizen’s Ralph Nader, founder of the modern consumer-rights movement, who framed deference a dangerous tool in the hands of agencies run by deregulators. Nader understood that when Republicans held control of the executive branch, deference could ratify “agency decisions . . . adverse to consumer and environmental interests.”

Three important developments help to explain Democrats’ eagerness to defend Chevron deference today.

First, by the time Barack Obama took office in 2008, congressional gridlock and hostility to new regulatory initiatives left Democrats with few effective tools to promote their pro-regulatory agenda. Re-reading old statutes like the Clean Air and Water Acts to license more aggressive regulation emerged as a practical path forward. As Mark Tushnet observed, Chevron offered “a major benefit to agencies seeking to regulate (or re-regulate) and only a small benefit to agencies seeking to deregulate.” Evidence from recent administrations makes this point clear. Consider that agencies under Joe Biden issued almost 50% more “economically significant” rulemakings than they did during the first four years of President Barack Obama’s term, while Obama’s overall rulemaking efforts significantly outpaced those of predecessors George W. Bush and Bill Clinton. (As one would expect, President Trump has issued far fewer such rulemakings.)

Second, the Democratic Party’s core constituencies have become increasingly educated. In 2024, voters with a college degree were 13 percentage points more likely to be Democrats than Republicans (55% to 42%). By contrast, voters without a college degree were 6 percentage points more likely to be Republicans than Democrats (51% to 45%).  One consequence of this diploma divide is that Democrats’ faith in administrative expertise and sympathy for agency officials—many with the same degrees and professional and social backgrounds as Democratic voters—has increased significantly since the 1960s and 1970s. Today, Democrats are far more likely than Republicans to say they view scientists favorably and to agree that scientists should be active in policy debates. By the same token, it is relatively unusual for contemporary Democrats to express sympathy with the view that agencies’ regulatory output might reflect “capture” by regulated entities.

Third, Chevron itself created a rhetorical framework that rival members of the Democratic coalition, including environmentalists, labor unions, and consumer groups, could rally around. While judicial deference could be (and has been) defended on a number of grounds—the logic of the separation of powers, for instance, or the importance of democratic accountability—an emphasis on agencies’ superior ability to interpret statutes in light of their expertise in what Chevron referred to as “technical and complex arena[s]”—gave pro-regulatory constituencies a common language to support the administrative state. Thus, for instance, a broad alliance of Democratic-affiliated groups, including Public Citizen, the AFL-CIO, the Service Employees International Union, the United Steelworkers, the Center for Progressive Reform, the Consumers Union, the Consumer Federation of America, the Natural Resources Defense Council, and the Sierra Club all opposed pre-Loper Bright efforts to codify a nondeference rule because it would “make our system of regulatory safeguards weaker by allowing for judicial activism at the expense of agency expertise.”

Given all of this, it is easy to see why some Democrats are urging the party to make restoring Chevron a priority—even if success is unlikely. After all, amending the Administrative Procedure Act to overrule Loper Bright and codify Chevron would almost certainly require reforming the filibuster, no easy feat in a party where moderate members benefit disproportionately from the practice. And help is unlikely to come from the Supreme Court’s conservative supermajority, which has clearly committed itself to the principles announced in Loper Bright.

But as I argue in a symposium essay for the Loyola Chicago Law Journal, it might be more productive to start thinking about the end of Chevron as a political opportunity. Democrats may find comfort in Justice Kagan’s apparent nostalgia for a bygone era when judges understood that they were not “experts in the field” and granted agencies the authority to “mak[e] interstitial policy” in their stead. But it is not at all clear that this sentiment is appropriate in the present moment.

Democrats today face some obvious political headwinds. Only about a quarter of Americans hold a favorable view of the party, which has struggled to build a national majority in its present incarnation as a coalition led by wealthy, college-educated professionals. In a country where a minority of voters hold bachelor’s degrees, many observers worry that Democrats cannot win (or sustain) national control if the party remains so “estrange[d] from working class voters.” In this context, insisting on agency expertise—even while advocating for popular regulatory interventions—might do more harm than good.

Questioning the Chevron consensus represents one way to address these concerns. Chevron’s end might prompt Democrats to reconsider the reflexive expectation that agency officials will be the vanguard of progressive policymaking. We have good evidence that the policy preferences of left-leaning civil servants, as reflected in the interventions they champion as well as those they opt not to pursue, increasingly diverge from the expectations of liberal voters. An independent bureaucracy free from political control—and, in particular, walled off from presidential supervision—might not be the best way to realize the policy goals that Democratic voters have set. So, too, Democrats might begin to question their broader commitment to scientific and technical expertise as an overriding political virtue and at least acknowledge the limits or blind spots of professional expertise.

These were lessons that the New Deal-era Democrats who founded our administrative state knew well. In 1938, the members of a committee charged by President Franklin Delano Roosevelt with proposing reforms to the executive branch declared that “strong executive leadership,” rather than bureaucratic independence, was “essential to democratic government.” Rather than emphasize their regard for expertise, they committed themselves to “carrying out the judgment and will of the people.” Democrats today might ultimately wish they did the same.

These thoughts are surely speculative. What we can say with greater confidence is that moving from one doctrinal equilibrium to another may ultimately prove politically generative, even as supporters mourn the loss of a favorable legal status quo. In the wake of a long-established doctrine’s demise, new lines of political communication may emerge. When it comes to thinking about the place of agencies in our constitutional system, Chevron’s end may prompt Democrats recover their New Deal heritage and emphasize “political judgment” over bureaucratic expertise in the hope of revitalizing their coalition and increasing its electoral appeal.

Gregory A. Elinson is an Associate Professor at Northern Illinois University College of Law.