Chevron deference has been used by the Supreme Court since 1984. Since that time, federal agencies have been able to capture more and more power over the American people.

Yesterday, the Supreme Court heard oral arguments in Michigan v. EPA, a case that will decide whether the EPA properly decided to regulate mercury pollution from power plants. The problem with the regulations is that by the EPA’s own estimates they will cost $9.6 billion annually and have only $4-6 million in direct benefits. The issue before the Court will be whether the EPA must consider costs when deciding to regulate mercury emitted by power plants.

We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects. – Justice Clarence Thomas from his concurring opinion in Dep’t of Transportation v. Ass’n of American Railroads