President Trump has promised to roll back the regulatory state, but he’ll need the help of a judiciary that has for decades deferred too eagerly to executive agencies.
Indeed. As the WSJ op-ed at the link says, that’ll require the judiciary to recognize its role in the Federal government and, in particular, its position in the hierarchy.
The proximate matter here is a DC Circuit ruling in US Telecom Association v Federal Communications Commission which used the Chevron Deference doctrine (which holds that the Court should be spring-loaded to uphold an Executive Branch agency rule rather than considering its constitutionality—its legitimacy—de novo on its merits) to find for the FCC. Judge Brett Kavanaugh dissented, and he based his dissent in large part on decrying that deference doctrine. The WSJ asked
Perhaps the High Court will accept his invitation to revisit a doctrine [Chevron Deference] that has long been abused.
But the existence of the doctrine is the abuse, not that the doctrine gets abused. The Constitution made the judiciary a coequal branch of the Federal government, not a deferential one.