Read more: The quiet GOP campaign to roll back regulations

Before the New Deal, the bulk of administrative-law cases dealt with matters such as land and patent grants, and military and civil-service employees. In both contexts, standard contractual principles of interpretation helped constrain the operation of administration law. The deference of 19th- and early-20th-century judges was not given to all administrative decisions, as the courts would later do in Chevron and Brand X, but only to those that followed consistent patterns of custom and usage. For example, Chief Justice William Howard Taft, in J.W. Hampton, Jr. & Co. v. United States in 1928, found an “intelligible principle” behind a statute that required that tariffs imposed on imported goods be designed to eliminate any unfair differential in price between domestic and foreign goods. The task there was manageable precisely because it was mathematical, so that the level of administrative discretion was necessarily constrained by the limited mission.

With the advent of the New Deal, the scope of the government mission became far broader, because for the first time it was possible to conceive of public ways to reorganize large segments of the economy, which by circumstance can be done only by administrative agencies. A quick look at a handful of relevant cases shows how the advent of new government powers diminished individual rights and transformed the legal and political landscape.

As an initial example, consider the allocation of the electromagnetic spectrum, the medium for radio communication, which had by that time become big business. In 1943, in National Broadcasting Co., Inc. v. United States, Justice Felix Frankfurter had to construe the deceptively simple words that defined the authority of the Federal Communications Commission under the Communications Act of 1934—“public interest, convenience and necessity.” Frankfurter read it broadly: “The Act does not restrict the Commission merely to supervision of the traffic. It puts upon the Commission the burden of determining the composition of that traffic.” The traffic officer sets the rules of the road, such that cars don’t crash and frequencies don’t interfere. But how does anyone determine the composition of the traffic? Frankfurter did not have a clue, so he blessed a broad delegation of that job to an equally clueless administrative agency.

With this maneuver, gone were the last vestiges of the non-delegation doctrine—the principle that Congress could not delegate its responsibility to write the country’s laws to administrative agencies—because no narrower grant of power could let the FCC look at some undefined range of supposedly relevant factors, as required by the statute. So when the FCC was forced to use “comparative broadcast hearings” to determine which of many applicants should receive a coveted government license, its ad hoc determinations made it difficult to articulate a sensible standard of judicial review. By 1965, the FCC had developed a decision process that rested on a list of seven malleable factors: diversification of control by media companies; full-time participation by station owners; proposed program service; past broadcast record; efficient use of frequency; character; and “other factors”—a meta-factor, as it were.