Chevron and Auer undermine the rule of law.
In a recent post, I discussed the fact that administrative agencies combine prosecutorial (executive) and judicial power, with the result that agencies are judges in their own cases. In this post, I want to propose a solution to the problem.
One way to avoid the combination of executive and judicial power is to have two different entities decide these matters. Interestingly, this actually exists in an agency — the National Labor Relations Board. The Board adjudicates cases under the National Labor Relations Act. The General Counsel of the agency, who is independent of the Board, makes the prosecutorial decisions. Thus, executive and judicial power are separated.
But there is another way of separating executive and judicial powers that would require a more significant change in agencies. One could employ Article III administrative courts instead of Administrative Law Judges (ALJs) to adjudicate. Article III administrative judges would have life tenure like other Article III judges. They would also not engage in any prosecutorial functions nor would they be supervised by officers who did.
But Article III administrative judges would require another change in administrative practice. Since it is unconstitutional for executive officers to revise the decisions of Article III judges, the agencies would not be able to hear appeals from the Administrative judges. This would deprive them of the power to announce policy through a case by case method.
In my view, this would be all for the good. This would provide agencies with an incentive to use rules to announce policy, which provides people with notice and imposes constraints on agencies.
Nor would the Administrative judges necessarily have inadequate expertise. The judges could be placed onto courts that do not adjudicate cases from merely one agency, as ALJs do now, but instead adjudicate cases involving broad subjects, such as economics, science, or health and safety.
While using Administrative judges would involve a larger change than the NLRB reform, it would not prevent the administrative state from operating. Significantly, our politics has undermined the separation of powers, under the guise of making the administrative state possible, when it was not really necessary to do so.