The Role of Federal Judges in the Modern Administrative State

From: RegBlog


To be sure, Congress undoubtedly must play its role in restoring the proper separation of powers between the branches. To that end, as lawmakers, we must resume our role as actual, involved decision-makers over the major policy issues facing our country, rather than delegating broad, unbounded policymaking authority to federal agencies. We must also rein in federal agencies through the legislative reauthorization and appropriations processes, as well as better perform our oversight responsibilities over the regulatory state. And last but not least, we must empower courts to play a more significant role in protecting the public liberty from regulatory overreach.


As I explained more fully in an essay last year, the Supreme Court has embraced a number of objectionable doctrines that require courts to defer to federal agency interpretations of law. The Chevron doctrine, first and foremost, commands courts to defer to agencies’ interpretations of ambiguous statutes they administer, so long as those interpretations are reasonable. A second, and perhaps even worse doctrine, is Auer deference—or Seminole Rock deference—which commands courts to defer to agencies’ interpretations of their own regulations, so long as those interpretations are not plainly erroneous. Both deference doctrines, I have argued, displace the judiciary’s constitutional role to say what the law is. The Separation of Powers Restoration Act would eliminate the regulatory state’s dangerous role as an authoritative interpreter of law and would return that power to the judiciary.

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