Working to restore liberty is not certain to win the culture war but acquiescing to the big administrative state will surely lose it.
In my last two posts, I have described how one could employ a reformed REINS Act and independent administrative courts to allow for greater separation of powers in the administrative context. In this post, I want to describe a third reform that would have the same effect: the elimination of all judicial deference to agency interpretation of law. I discuss this reform more extensively in a recent paper.
Under current administrative law, agencies enjoy three types of judicial deference to their interpretations of law. First, there is Chevron deference, which grants deference to an agency’s interpretation of statutes that it administers in certain circumstances. Second, there is Auer deference, which grants deference to an agency’s interpretation of legislative regulations in a wide range of circumstances. Third, there is Skidmore deference, which grants deference to an agency’s interpretation of all legal materials about which the agency may enjoy special expertise.
From a separation of powers perspective, Chevron deference is problematic, because it transfers from the judiciary to the executive part of the power to say what the law is in particular cases. As Marbury said more than two centuries ago, that authority is part of the judicial power.
One problem with Chevron is that it treats Congress as delegating such deference to agencies, even though there is no good reason to believe that Congress did any such delegating. If Congress did not delegate that deference, Congress would have intended that the courts interpret those statutes without deference, rather than having the agencies say what the statutes mean.
But even if Congress had delegated that deference to the agency, it would still be problematic. Congress cannot delegate the judicial power to an agency. The separation of powers should bind the legislature as well as the other branches. (Sometimes, Chevron is thought of as involving the delegation to the agency of the legislative power to enact a rule. That would also be problematic from a separation of powers perspective.)
Auer deference is also problematic from a separation of powers perspective. Legislative regulations are legal enactments that bind both the public and the agency. The meaning of those regulations in particular cases is once again part of the judicial power. Allowing an agency that is part of the executive branch to exercise that judicial power is an affront to the separation of powers.
Both Chevron and Auer have problematic effects. First, they give agencies additional powers. Agencies already have significant power to bring enforcement actions and to administer government programs. With legal deference, they can expand their own power by reading statutes and regulations to further their authority.
Second, Chevron and Auer undermine the rule of law. They allow ordinary government officials significant discretion to say what the law is. As a result, they reduce the limits that the law places on government officials and the notice that the public has of the meaning of the law.
Finally, Chevron and Auer also create bad incentives. They allow agencies to interpret the law in particular cases to further their own enforcement actions. Thus, this power encourages biased judicial decisionmaking by agencies to allow them to win cases. Moreover, that agencies know they have this power provides them with an incentive to bring even less justified enforcement actions, since they know they can decide the case for their own side.
I should be clear about the argument I am making here. I am not making an argument based on the original meaning of the Constitution. Whether Chevron or Auer violates the original meaning is a hard question that turns on a considerations that I do not discuss here. Instead, I am making an argument based on the principle of the separation of powers as I understand it.
In my next post, I will explain why I believe even Skidmore deference — the third type of deference – is unjustified.