Public Lecture: "In a Mirror, Darkly: Delegation, Democracy, and the Second Enlightenment"

Should the herring industry pay for observers on their fishing boats to enforce government regulations? Constitutional questions sometimes arise in mundane settings, and Loper Bright Enterprises v. Raimondo, where this question was posed and whose oral argument the US Supreme Court heard on January 17, 2024, is a striking example. At issue in this factually humble case about herring fishers’ economic rights is a principle of modern statecraft that has stood for forty years as foundational for American government. First articulated in Chevron v. Natural Resources Defense Council, among the top ten Supreme Court decisions most cited by legal scholars, that principle delegates responsibility for resolving statutory ambiguity to executive agencies because of their expertise. In Loper, the Supreme Court seems poised to take back the principle of “Chevron deference” on the ground that courts and legislatures, not the executive, are constitutionally mandated to interpret the law.

Going beyond observations of boundary work, or demarcation, and purification that are familiar to STS scholars, I argue that Loper represents a “constitutional moment” in which the governing power of science-based expertise is under threat from many directions, not least in response to the widespread populist reaction to globalization, Covid-19 and climate change. Not surprisingly, given the institutional particularities of American political culture, such a generational, even centennial, political struggle manifests itself in the United States through litigation. In both historicizing and theorizing Loper, I will weave together strands from my own constitutional reflections, beginning with Controlling Chemicals (1985) and The Fifth Branch (1990), and drawing attention to constitution-making as a machinery of co-production.