Investor’s Business Daily: Only Strong Judicial Review Can Restore Separation Of Powers

Originally published by Investor Business Daily September 19, 2018.

We all expect “our day in court” before the government takes our money or restricts our freedom. Even for a parking ticket, we expect the chance to “tell it to the judge” before paying the fine.

We expect that judges will hold the police to the rules, and clarify the rules if needed. But we also expect the judge to be neutral, or what value is a day in court?

Without judges to fairly check the police, clear rules become vague. A simple rule like “don’t park in the red zone” becomes “don’t park too close to the red zone,” with the police deciding what “too close” means. So we subject even parking tickets to judicial review, with judges, not the police, responsible for interpreting the rules.

But this fundamental system of neutral judicial review has gone missing from the federal regulatory process. Today’s judges have surrendered their role as a check on executive branch agencies. Instead of independently determining what the rules mean, and holding the government to those rules, federal judges now routinely “defer” to the regulatory agencies, whose senior bureaucrats routinely tell the judges what the rules mean.

This deference is what allows self-interested bureaucrats to rewrite the law, at the expense of the citizens they reportedly serve, and it has real-world impacts on American citizens.

Take the case of James Kisor, a Vietnam veteran who has suffered for decades from post-traumatic stress disorder (PTSD). The Department of Veterans Affairs (VA) denied him 23 years of benefits, despite agreeing he has combat-induced PTSD. VA bureaucrats accomplished this by deeming his military combat records as not “relevant” to his PTSD diagnosis.

James Kisor’s Hell

The only way they could say that proof of his combat service was “not relevant” to his PTSD diagnosis was by counter-intuitively and artificially interpreting “relevant” to mean something else altogether. Just so they could deny benefits to a Vietnam veteran suffering from decades of PTSD due to his service to his country.

Kisor sued, but the federal courts deferred to the VA’s interpretation of “relevant” — not because the interpretation made sense but merely because it was the VA’s position. Kisor has appealed to the Supreme Court to review his case. Should the Court take his case, it could set the stage for the long overdue restoration of the federal judiciary’s independence from the executive branch.

This problem is not limited to the VA. It is also ubiquitous in most of today’s political battles. Don’t like the way a president rewrites labor and environmental and education laws? It turns out, judicial deference — letting the President and cabinet officials decide what the law means — is what allows either party, when it holds the White House, to re-interpret the rules to suit electoral constituencies.

Judicial Review And Deference

This allows abusive rule making and enforcement to flourish. The biases and personal agendas of the enforcers replace the rule of law. And the system of checks and balances, designed to curtail arbitrary government power, gives way to a system that encourages politically determined outcomes and unchecked power.

The Supreme Court must end judicial deference to agency interpretations of Congressional statutes (so called Chevron deference, based upon a controversial 1984 Supreme Court decision), and to administrative interpretations of agency regulations (so called Auer deference, based on a similarly controversial 1997 decision).

These forms of judicial deference allow regulatory agencies to rewrite the rules to rig the game in their favor. A Supreme Court decision to reverse this damaging dynamic would go a long way toward restoring the separation of powers in government.

For its part, Congress should retake responsibility for making the laws, by ending its lazy routine of delegating broad rule-writing power to executive agencies. Congress is supposed to be the branch of government most accountable to the American people. It should make itself accountable, by passing the laws instead of the buck.

Letting Bureaucrats Write Laws

Today’s legislators pass vague laws with high-minded titles, which delegate responsibility most or all of the real rules, especially the controversial ones, to unaccountable bureaucrats. Congress must retake its lawmaking power.

Meanwhile, agencies can and should stick to their constitutionally assigned role: enforcing the rules instead of making them up. They will have to willingly surrender some of the power that the courts, through deference, have unconstitutionally given them.

It’s time to restore all three branches of government to their designated constitutional roles, thereby restoring balance and accountability to the law. That starts with rethinking the dangerous habit of judicial deference and rediscovering the commitment to neutral judicial review.

Read all installments of PLF’s regulatory reform series published in Investor’s Business Daily:

Part 1: “Taming the Regulatory State: It’s a Constitutional Imperative” by Todd Gaziano
Part 2: “Reining in the Regulatory State: Restoring the Separation of Powers” by Tommy Berry
Part 3: “Only Strong Judicial Review Can Restore Separation of Powers” by Tony Francois
Part 4: “Rule Makers Must Follow the Rules, Too” by Jonathan Wood
Part 5: “For Regulatory Reform, Washington Should Start with the Tools They Have” by Damien Schiff
Part 6: “Congress Must Regulate The Regulators To Restore Accountability” by Anastasia Boden