Des Moines Register: Iowa Legislature should restore judicial independence

In 2020, the Iowa Supreme Court rejected a married couple’s challenge to the Department of Revenue over a tax assessment and penalty involving the sale of farmland. The question was whether the couple had “materially participated” in a “business” by renting their farmland. The couple said they did, pointing to their bookkeeping and property maintenance. The Department of Revenue disagreed, arguing that the couple’s activities weren’t “regular, continuous, and substantial,” as required by the agency’s rule. Both sides had persuasive arguments, but rather than decide the case independently, the Supreme Court put a thumb on the scale of justice in favor of the tax collector.

Welcome to “judicial deference,” in which courts defer to government agencies about the meaning of the law those agencies enforce. Happily, the Iowa Legislature is considering a bill, House File 645, that will end this systemic bias in its state courts. Iowa should join the states that have adopted similar measures to bolster our system of checks and balances.

Since its founding, our country has wrestled with a dilemma: how to, as James Madison put it, “first enable the government to control the governed; and in the next place oblige it to control itself”?

The answer in the U.S. Constitution — one shared by the Iowa Constitution — is to split the powers of government into separate bodies that check each other. The legislature makes the laws, the executive enforces them, and the courts interpret them. Thus, as Madison put it, “ambition” can “be made to counteract ambition.” In practice, though, this division is tough to keep up, and the fences that keep officials in their respective territory often need mending.

Judicial deference wears down the fences. When courts defer to agency interpretations of the law, they systematically favor the government over individuals when disputes arise. And, as the Iowa Department of Revenue did in the farmland case, government agencies often interpret the law to serve their own interests.

As a result, deference turns agencies into lawmakers and judges in their own cases. This concentration of all three government powers in executive agencies is a gross violation of the separation of powers and a serious threat to liberty and the rule of law.

Agency bureaucrats are not elected and are not democratically accountable to the public. Their policy preferences are not the same as the legislature’s, i.e., the people’s direct representatives, and they have no incentive to heed the careful legislative compromises that represent the will of the public.

Some defend deference on the basis that the agencies are the experts. And so they are, in some respects. But judges are the experts on the meaning of the law. Tax collectors may know best how to calculate your clean energy tax credits when the tax law is clear or sniff out tax evasion, but that does not make them expert on what the legislature meant by vague portions of the tax code. Nor is the Department of Revenue an expert on all the policy considerations that go into such legislation. Allowing an agency to decide the scope of its own power does not “oblige it to control itself.”

When you task your child with cleaning his room, you might defer to him about where to store his toys, but you better not let him define “clean” if you care about results.

The bill currently before the Legislature would require courts to exercise neutral and independent judgment on the meaning of the law. They have a hefty toolbelt, what we call “canons of construction,” to help them interpret text. Judges look to context, grammar, ordinary meaning, and a wide range of other interpretive tools to come up with the meaning of the law. And in rare instances where it’s truly unclear even after thorough analysis, the bill follows centuries of practice and would require judges to resolve “ties” in favor of the individual, not the government.

Iowa should join the growing number of states that have adopted similar measures to mend the fences that keep government beholden to the people.

This op-ed was originally published in the Des Moines Register on April 6, 2023.