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 indi- vidual 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, un- checked discretionary power of administrative officials. An elastic com- merce clause and ineffective non-delegation doctrine leave judicial review of administrative action for consistency with statutorily assigned tasks as an especially important safeguard. 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 dis- cretionary authority for those actions. Although the doctrine is defended, reasonably, as constraining a different sort of discretionary government au- thority―resting in the hands of judges rather than administrators―Chev- ron deference has reduced the effectiveness of review as a limitation on ad- ministrative power. This article looks at the changes in constitutional limits on official power, the function of the Chevron doctrine, and potential alter- natives as a check on discretionary administrative power, concluding that a stronger requirement of actual grants of discretion is more legally defensi- ble and more consistent with the rule of law.