Arguments against judicial deference: Deference violates separation of powers principles
| What is deference in the context of the administrative state? Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. The U.S. Supreme Court has developed several forms of deference in reviewing federal agency actions, including Chevron deference, Skidmore deference, and Auer deference. Learn about state-level responses to deference here. |
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This page captures the arguments that judicial deference violates separation of powers principles, one of the main arguments that has been advanced in opposition to judicial deference as a doctrine.
Deference occurs when a federal court defers to an agency’s interpretation of (1) a statute Congress authorized the agency to administer or (2) the agency’s own regulations. The U.S. Supreme Court developed multiple deference doctrines throughout the 20th century, including Chevron deference, Skidmore deference, and Auer deference.[1][2]
Since 2015, the United States Supreme Court has reconsidered aspects of judicial deference, refining Chevron deference, limiting its application, and recognizing exceptions, according to administrative law scholar Michael Kagan. In Kisor v. Wilkie (2019), the court upheld Auer deference but narrowed its scope, reflecting what Kagan described as a "period of uncertainty" for judicial deference.[3][4]
On June 28, 2024, the Supreme Court overturned Chevron deference in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, ruling that federal courts may not defer to an agency’s interpretation of an ambiguous statute.[5]
Deference violates separation of powers principles
The idea of separation of powers was foundational during the drafting of the U.S. Constitution. Under the separation of powers doctrine, three powers (executive, legislative and judicial) need to be separated in order to restrain governmental overreach and the abuse of power. According to these arguments, deference transfers the judicial power to the executive branch and ignores the judicial obligation to serve as a check on the political branches.
Opponents of deference argue that the practice violates separation of powers principles according to the following claims.
Claim: Deference violates the separation of powers
- Law professor Aditya Bamzai cited the dissent in City of Arlington v. FCC (2013) to highlight a separation-of-powers critique of Chevron deference. He writes, “The Chief Justice’s dissent (joined by Justices Kennedy and Alito) in City of Arlington v. FCC, for example, attempted to re-evaluate Chevron in light of separation-of-powers first principles. While nominally accepting the Chevron framework, the City of Arlington dissent stressed that its ‘disagreement’ with the majority is ‘fundamental’ and premised on the notion that the ‘duty to police the boundary between the Legislature and the Executive’ is ‘firmly rooted in our constitutional structure’ and is ‘as critical as [the] duty to respect that [boundary] between the Judiciary and the Executive.’ Fixing ‘the boundaries of delegated authority,’ according to the dissent, ‘is not a task’ that courts can ‘delegate to the agency’ because ‘[w]e do not leave it to the agency to decide when it is in charge.’”[6]
- Bamzai cites Roberts’ majority opinion in King v. Burwell (2015) “As the majority put it, the Court ‘often’ applies Chevron in assessing statutory issues of this nature, but not in ‘extraordinary cases’ of ‘deep ‘economic and political significance’ . . . central to th[e] statutory scheme.’ Accordingly, it was the Court’s—not the agency’s—’task to determine the [statute’s] correct reading.’”[6]
- Law professor Cynthia R. Farina writes in a law review article, “The outcome in some or even all of those cases may be correct, but the Court's analysis surely has been inadequate. It continues to invoke the Framers' fear of legislative dominance, and disregards the fact that much of the power which bred that fear has passed out of Congress's grasp. It recalls the Framers' concern that the President be a strong and independent player in the power struggle and overlooks the superiority that structure and custom have given him in a world of delegated power. It emphasizes the safeguards that the full legislative process was intended to provide against ill-considered, unrepresentative policy choices and ignores the reality that much of our most significant policy making now occurs in an administrative process where substitutes for the original safeguards must somehow be provided. It casts agencies in the role of law executors, worries about shielding them from undue legislative or judicial management, and blinks at their far more important role as lawmakers, whose vulnerability to White House influence ought to raise equally worrisome questions of undue control from the Chief Executive.”[7]
- Attorney T.J. McCarrick writes, “[I]ncreasingly, judges have declared open season on Chevron writ large, arguing it upsets the proper balance of power between the branches of government. This trend is notable, not for its critique of centralized power in bureaucracies—that’s old hat—but for its implicit embrace of judicial supremacy. Indeed, nearly every skeptic of Chevron genuflects at the altar of Marbury, trumpeting the judiciary’s power to ‘say what the law is.’ That is a fitting response for jurists laboring to throw off the yoke of a decision long considered the ‘counter-Marbury for the administrative state.’”[8]
- McCarrick writes, “Textualist and originalist critiques of administrative deference largely rest on the following rationales: (1) Chevron flatly contradicts the plain text of the Administrative Procedure Act (APA), which empowers courts—not agencies—to interpret statutory provisions; and (2) Chevron violates the separation of powers as originally understood.”[8]
- McCarrick describes anti-Chevron deference arguments in this way, “In sum, Chevron concentrates almost all government power in the administrative state. And by vesting agencies with authority to create, interpret, and enforce the law, individual liberty is placed at risk.”[8]
- Farina writes, "For the deferential model to result in interpretive choices being made under the direction of elected officials, Congress and/or the President must exert meaningful direction over agency decisions." However, Since there were over 3 million employees of the administrative state at the time Farina was writing in 1989, she says that there is plausible skepticism that Congress or the president "can penetrate the immense size and bewildering complexity of the federal bureaucracy" and exercise control.[7]
- Farina writes, "Chevron's facile pronouncement that deference is necessary because the President's elected status entitles him to direct the course of regulatory policy—to the point of constitutionally disabling the judiciary from exercising even the modest slice of policy-making power represented by statutory interpretation—appears not even to recognize that a major theoretical transformation has occurred."[7]
- Law professor Christopher J. Walker writes, “Then-Judge Gorsuch took this argument one step further by saying that ‘[t]ransferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.’”[9]
Claim: Auer deference violates separation of powers
- Aditya Bamzai cited Thomas’ concurrence from Perez (2015) questioning Auer. He writes, “Justice Thomas likewise questioned the ‘legitimacy’ of Seminole Rock, which (according to him) ‘effect[ed] a transfer of the judicial power to an executive agency’ and ‘raise[d] constitutional concerns’ by ‘undermin[ing]’ the Court’s ‘obligation to provide a judicial check on the other branches.’ That was so because, according to Justice Thomas, ‘the judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.’ In language that could apply just as easily to Chevron as to Seminole Rock, he claimed that ‘[w]hen courts refuse to decide what the best interpretation is under the law, they abandon the judicial check.’”[6]
- Christopher J. Walker writes, “[T]he main case for eliminating Auer deference is two-fold: First, it is unconstitutional (or otherwise contrary to the proper separation of governmental powers in a Blackstone-Locke-Montesquieu sense) for an agency official to both make and execute the same law. Second, such combination of law-making and law-executing authority creates inappropriate incentives for agencies to draft vague regulations and interpret those regulations through less-formal means after the fact.”[9]
Footnotes
- ↑ Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," February 2017
- ↑ Blattmachr, J. (2006). Circular 230 Deskbook. New York, NY: Practising Law Institute. (pages 1-21)
- ↑ UNLV William S. Boyd School of Law Legal Studies Research Paper, "Loud and Soft Anti-Chevron Decisions," September 9, 2017
- ↑ SCOTUSblog, "Kisor v. Wilkie," accessed December 10, 2018
- ↑ SCOTUSblog, "Loper Bright Enterprises v. Raimondo," accessed July 3, 2024
- ↑ 6.0 6.1 6.2 Aditya Bamzai, "The Origins of Judicial Deference to Executive Interpretation," The Yale Law Journal, Vol. 126, No. 4 (Feb. 2017)
- ↑ 7.0 7.1 7.2 Cynthia R. Farina, "Statutory Interpretation and the Balance of Power in the Administrative State," Columbia Law Review, Vol. 1989 (1989)
- ↑ 8.0 8.1 8.2 T.J. McCarrick, "In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron," San Diego Law Review (2018)
- ↑ 9.0 9.1 Christopher J. Walker, "Attacking Auer and Chevron Deference: A Literature Review," The Georgetown Journal of Law & Public Policy, Vol. 16 (2018)
