There’s nothing ‘fair’ about judges tipping the scales in favor of federal agencies

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USC Law School Professor Franita Tolson argued in a recent column that the proper role of judges in the American legal system is to defer to bureaucrats who apply “expertise and knowledge” to solve problems. And she argues those, like me, who disagree with this proposition “reject the administrative state.” 

She’s wrong on both counts.

{mosads}While it’s true that executive branch agencies apply expertise to carry out the objectives delegated to them by Congress, sometimes they don’t. In fact, sometimes they assume power that goes far beyond what Congress intended they should have. That’s when we need judges to step in and uphold the law as written.


Sadly, the courts act under the doctrine known as “Chevron deference,” which requires judges to defer to reasonable agency interpretations of ambiguous statutes on the theory that agencies have more expertise than judges on the issues at hand.

You could say that when it comes to administrative-law jurisprudence, lady justice is not blind; her blindfold is off and she’s winking at the lawyers, who work for the most powerful litigant in the country — the federal government.

Tolson accuses me of believing “our vast administrative apparatus” is “inconsistent with the original understanding of the Constitution.” Guilty as charged.

The administrative state is often fundamentally at odds with our carefully crafted constitutional order – a legislature that passes laws, an executive that enforces them, and a federal judiciary that says what the law is.

The administrative state combines all three of those functions into a single entity. An agency issues regulations that have the binding force of law; it enforces those regulations; and it prosecutes and penalizes those who run afoul of them – a dubious separation-of-powers trifecta.

As James Madison put it in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elected, may justly be pronounced the very definition of tyranny.”

Thankfully, President Trump is nominating and the Senate is confirming judges who are wary of federal agencies interpreting laws and enforcing regulations without sufficient judicial oversight. Supreme Court Justice Neil Gorsuch argues that Chevron deference allows “executive bureaucracies to swallow huge amounts of core judicial and legislative power” and calls it “a judge-made doctrine for the abdication of the judicial duty.” 

It’s bad enough that Congress has ceded its lawmaking authority to unelected bureaucrats throughout the administrative state, but it is absolutely shocking when a law professor pushes the judicial branch to wittingly cede its constitutional duty to decide “all cases, in law and equity, arising under this Constitution, the laws of the United States.”

But it was particularly surprising to read professor Tolson’s full-throated defense of Chevron deference while at the same time she bemoans that, “conservatives have pushed back against the reach of federal agencies, a rejection that is on full display in the current administration.”

As Justice Gorsuch has pointed out, the kind of deference professor Tolson advocates allows any administrative agency to win in court even if it chooses “to reverse its current view 180 degrees anytime based merely on the shift of political winds.” It will be amusing to watch her reaction when an appellate court cites Chevron in defense of a Trump administration rule with which she disagrees.

Also, given that agencies can change their views on important administrative matters on a political whim, why should the judiciary assume an agency’s interpretation of a law is any more valid than the interpretation of the party challenging the agency in court?

This is not about rejecting the administrative state — it’s about ensuring the judicial branch plays the role it was meant to play under Article III of the Constitution and fully formed in Marbury v. Madison. Federal judges are obliged to decide the law. They should “defer” to the decisions of unaccountable bureaucrats only when the law and the Constitution are in sync with the bureaucrats’ interpretation.

Columbia University law professor Phillip Hamburger, who wrote an excellent book on this topic (Is Administrative Law Unlawful?), hit the nail on the head when he said administrative law “has become the government’s primary mode of controlling Americans.” It used to be that only corporations worried about the expanding administrative state, but it has now spread to the point where almost all Americans are caught in its maw, including through the estimated 300,000 federal regulations with criminal provisions.

The separation of powers was designed to prevent government from wielding this kind of unrestrained power. The founding fathers would likely be shocked at how cavalierly the legislative and judicial branches have subcontracted their solemn constitutional duties to unelected bureaucrats, who then gang up on the citizenry.

Professor Tolson can lean on the expertise of the administrative state all she wants. For me, it’s always better to rely on the Constitution. 

Mark Holden is chairman of Freedom Partners Chamber of Commerce and general counsel for Koch Industries.

Tags Chevron Deference Constitutional law Donald Trump Mark Holden Neil Gorsuch Separation of powers

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