The Separation of Powers: {Explained}

Why Do Structural Constitutional Provisions that Constitute the Separation of Powers Matter?

In this series, The Separation of Powers: Explained, legal scholars explain how the rise in power of the federal regulatory bureaucracy (known as the regulatory or administrative state) has eroded the separation of powers, why that should matter to all Americans, and what solutions will restore government to the original constitutional design.

I

Why Do Structural Constitutional Provisions that Constitute the Separation of Powers Matter?

II

What’s Wrong With Congress’s Delegation of Its Lawmaking Power?

III

Why Due Process of Law Is a Necessary Constraint on the Regulatory State

IV

When Emergency Powers Are Wrongly Used to Tackle Chronic Problems

V

What’s Wrong with an “Independent” and Unaccountable Regulatory State?

VI

Why Judicial Bias Toward Agencies Is Unconstitutional

I

Why Do Structural Constitutional Provisions that Constitute the Separation of Powers Matter?

The Problem

What’s the Problem if the Separation of Powers Is Altered or Ignored?

Each of the three branches of government has wrongfully relinquished authority to the regulatory state: the legislative by delegating its lawmaking authority to regulatory agencies; the executive by allowing unaccountable “independent” agency officials to make and enforce the law; and the judicial by showing bias toward agency officials by deferring to them in court.

The U.S. Constitution’s framework carefully “vests” or grants different powers from the people to each of three branches of government, and the Constitution grants additional powers to each to check the expansion or abuse of the other branches’ powers. These are the Constitution’s structural provisions, which form the backbone of the “separation of powers.” They provide structural protections against abuses of power that undermine freedom. They must be fully restored because they are the main protections of our liberty.

These structural protections inherent in the separation of powers are essential to secure our individual rights. Indeed, they are the most important protections of our individual liberty. Without them, the Bill of Rights might be little more than a wish list. As Justice Antonin Scalia explained in his dissent in Morrison v. Olson, many countries have seemingly improved upon our Bill of Rights with additional supposed rights, but “mere words” are “worthless.” Elsewhere Scalia declared, “Every tinhorn dictator in the world today has a Bill of Rights. It isn’t the Bill of Rights that produces freedom. It’s the structure of government that prevents anybody from seizing all the power.”

Indeed, the North Korean and Chinese constitutions guarantee such things as the right to relaxation and freedom from insults. The former Soviet Union’s constitution ensured the right to housing, work, rest, and much more. But without appropriate checks on governmental power, nothing guards individual rights from government encroachment when a centralized government wants to act.

The Constitution

How Does the Constitution Separate Government Powers?

The Framers’ insight was not just that government powers should be divided, although even that ensures certain government actions require multiple branches to act together before the coercive power of government could be employed against us. In addition, certain powers (like lawmaking) were given to a particular branch with special controls (such as direct electoral controls), and then checked in other ways (such as the veto power and the power of judicial review of unconstitutional statutes). The direct election of representatives and senators, for different terms, with different constituencies, and the almost simultaneous agreement that is necessary in both legislative chambers, plus presidential assent or supermajority override, requires compromise and makes abusive laws less likely to pass.

The Framers also provided particular checks to particular branches with an expectation that members of each branch would be ambitious, and especially ambitious in seeking the affection of the people. It was expected that they would generally use their ambition to check unpopular or dangerous ambition in other branches. As James Madison explained in Federalist 51, “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others … Ambition must be made to counteract ambition.”

In this manner, the constitutional separation of powers is fundamentally different from a power-sharing arrangement among oligarchs, who can create new arrangements if it suits their needs. For example, Mafia bosses supposedly divided up the boroughs of New York City in which each of them would control their illicit trade—for the benefit of the Mafia bosses and their crime syndicates. The constitutional separation of powers operates differently because it divides a single exercise of government power horizontally, not geographically, and that’s for the benefit of those subject to government power, not the government actors. Ideally, before the government can exercise its power against us, Congress has to establish laws (through a particular process that is sensitive to the liberties of the people), the executive has to investigate and prosecute a violation of law, and the courts have to pass independent judgement on the constitutionality and applicability of the law in question to the citizen’s actions.

Accordingly, the Supreme Court has correctly explained that members of the three branches can’t agree or collude to violate the separation of powers because it is not designed for their benefit, but to protect the liberty of the people.

Government Violation

What Happens When Government Violates the Separation of Powers?

When the separation of powers becomes seriously distorted, the checks and balances of the Constitution lose much of their force to limit government’s tendency toward tyranny. Ambition doesn’t check ambition. When courts abdicated their role to prevent delegations of lawmaking power and to independently interpret law, that encourages even more unaccountable delegation of lawmaking power—and the types of lawmakers elected over time become more and more reluctant to take responsibility for substantive details of lawmaking. When the President is prevented from controlling the actions of supposed independent agencies or even functions of his own departments, people come to expect lawmaking from unelected bureaucrats who hide behind false or overstated claims of expertise. When other officials claim emergency powers to issue unilateral edicts and mandates, all liberty is threatened.

The Solutions

How can The Separation of Powers Be Restored?

There may be almost as many solutions to fully restore the separation of powers as there are means of violating those structural protections of liberty, but we can identify some of the most important solutions and low-hanging fruit here. Other explainers in this series drill down on particular problems and identify other solutions or expand on those listed below.

Increase public awareness and corresponding public calls for the branches of government to carefully guard their constitutionally assigned spheres of authority, including stopping Congress from delegating more of its lawmaking authority to agencies and ending judges’ abdication of their duty to “say what the law is” by deferring to (or showing bias toward) federal agencies.

Ensure through litigation, additional legislation, or administrative reform that “rulemakers follow the rules” when they issue rules that bind the public. For example, the Constitution’s Appointments Clause requires that only principal officers appointed by the President and confirmed by the Senate may finalize regulations with the force of law. Other regulatory reform laws that increase public accountability include the Congressional Review Act, Regulatory Flexibility Act, and Paperwork Reduction Act, among others.

Guarantee proper due process protections in agency enforcement actions, such as making agency rules of evidence public, clear, and effective, preventing multiple enforcement actions stemming from the same conduct, and giving notice of an investigation and an opportunity to respond to possible charges.

Hold agencies accountable for mistreating citizens by making agency officials answerable to elected officials and ending immunity doctrines that protect officials from being held personally liable for gross misconduct.

II

What’s Wrong With Congress’s Delegation of Its Lawmaking Power?

The Problem

What’s the problem?

When Congress delegates its lawmaking responsibilities, whether to independent agencies or executive branch officials, elected lawmakers can claim credit for “doing something” to address a problem but shirk responsibility for the regulatory results. This may be appealing to Congress, but the direct threat to individual liberty from this violation of the Constitution’s separation of powers is predictably grave.

The framers of the Constitution consciously designed a structure of separated powers, including checks and balances, to protect individual rights and limit government’s tyrannical tendencies. Not only are overall governmental powers divided to better protect liberty, but specific branches are given particular powers, some of which have to be exercised in particular ways. The framers thought the lawmaking power was the most dangerous threat to liberty, so special care was given to ensure the threat was minimized as much as possible.

Justice Neil Gorsuch explained in a dissenting opinion in Gundy v. United States that the framers “went to great lengths” to make lawmaking difficult, including fracturing the legislative task among two houses of Congress and a president, each with different constituencies, lengths of office, and modes of election. The constitutional gauntlet required to make law is a conscious feature of the charter’s longest article, not a bug.

Because legislative mandates on private conduct are the most serious threats to liberty, legislation requires carefully-proscribed and coordinated action to ensure the resulting laws will benefit from compromise, consensus, and sensitivity to different interests (or factions), all of which were designed to lessen “the danger of those errors which flow from want of due deliberation, or . . . which proceed from the contagion of some common passion or interest,” as Alexander Hamilton wrote in Federalist 73.

From a design standpoint alone, it is inconceivable that the framers would have taken such great care in whom they delegated the people’s lawmaking power, how those lawmakers are elected, and how they must cooperate to make laws, but didn’t care a whit if this “most dangerous” power was later re-delegated to individual, unelected administrators.

No current justice of the Supreme Court disputes that the rule against Congress delegating its lawmaking power is crucial to the Constitution’s separation of powers. The sticking point over the course of the last 85 years has been how to properly enforce it. What standard should the courts use to judge congressional delegations and how searching or deferential should judges be in applying it?

For most of the last 85 years, the Supreme Court not only applied the wrong legal standard that seriously restricts judicial policing of congressional delegations, but it applied an increasingly feeble version of that standard, the “intelligible principle” test. Under this test, courts consider whether Congress specified an “intelligible principle” to guide an agency in exercising discretion to make law. Although the original version of the test was problematic enough, the lax way it was applied in subsequent decades sanctioned practically every broad and vague delegation of lawmaking power to regulatory agencies.

Justice Gorsuch’s dissent in Gundy convincingly explains why such a weak “mutated” test is inadequate to prevent delegations of lawmaking power and has no foundation in the text of the Constitution, which provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.”

This enfeebled test led to broad and absurdly vague delegations of lawmaking power from Congress to agencies, many of which have nonetheless been upheld by courts. Examples include: OSHA is instructed to develop and mandate “workplace standards” (i.e., workplace mandates) that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” The Act has no limit on what is “appropriate.” EPA is required in the Clean Air Act to issue ambient air standards that are “requisite to protect the public health.” Several broadcast related statutes gave FCC the power to regulate numerous issues with mandates that are in “the public interest, convenience, or necessity.”

No statute can be perfectly clear in all its applications, and thus, some gap-filling is almost always necessary—whether by administrative rulemaking, executive enforcement, or judicial construction. Yet there is a wide continuum between unavoidable and interstitial (i.e., small) gap-filling enterprises and wholescale delegations of vast domains of legislative-rulemaking authority to different subject-matter legislatures (called regulatory agencies) to define completely new rights, duties, and obligations only vaguely hinted at by the authorizing statutes.

Chief Justice John Marshall famously distinguished in Wayman v. Southard (1825) “those important subjects, which must be entirely regulated by the legislature itself from those of less interest, in which a general provision may be made, and power given to those who are to act . . . to fill up the details.” Without meaningful judicial enforcement of that distinction or something like it, Congress is encouraged to delegate huge swaths of legislative power over different subject matters, with the merest instruction that an entire policy area be regulated “in the public interest.”

That some enforcement discretion may be necessary is no excuse for extreme judicial deference. Some government searches are necessary in the enforcement of criminal laws too, but that doesn’t mean anything goes. Based on a body of court precedents, we now know that certain types of searches are reasonable and others are clearly unreasonable. And still others continue to present difficult line-drawing problems. Thus, the courts will never be free from making the final calls in hard cases. But the resolution of these hard cases is a special blessing to the legal system and the rule of law, because it helps better define the line that divides the two extremes, all of which has a helpful effect in guiding officials to enforce order without abusing individual rights.

The delegation problem concretely harms people in several quantifiable and unquantifiable ways. By several measures, the sheer number and volume of regulations issued by regulatory agencies now dwarfs the laws enacted by Congress. From 1995–2016, federal agencies issued 88,889 rules and Congress passed 4,312 laws. Qualitatively, the framers anticipated that lawmaking would be more sensitive to the liberties of the people if it was done by representatives who are directly elected by different constituencies and have to openly debate and compromise on policy. Broad delegations of rulemaking power eliminate almost all those safeguards, and the resulting increase in cost of regulation in terms of reduced economic growth, job loss, lost wages and higher prices, and lost freedoms is predictable.

The Solutions

What are the solutions?

Revive the original understanding of nondelegation doctrine to ensure that Congress only delegates responsibility to agencies or executive officials “to fill up the details.”

Keyhole solution for older delegations or the courts’ inability to vigorously police unlawful delegations: enact something similar to the REINS Act. Even in cases where some delegation may be necessary or it’s too difficult to get Congress to repeal older delegations, the reform law would prevent an agency from finalizing any rule with a significant impact until it is delivered in draft form to Congress and Congress enacts it (or not).

III

Why Due Process of Law Is a Necessary Constraint on the Regulatory State

The Problem

What happens without due process of law?

It is fundamentally wrong for the government to take your life, liberty, or property unless it fairly demonstrates that you have done something unlawful. The process provided matters as much as the quantity or quality of the government’s proof. From popular movies, books, and television programs, crime drama fans know many of the steps the police and prosecutors must follow to successfully arrest and convict a criminal defendant. In the civil justice system, the penalties are generally less severe. But the same general principle applies—the government must prove its case, in a court of law, with fair procedures before it may lawfully deprive you of your life, liberty, or property.

These due process of law principles have a long history in the Anglo-American judicial system, traceable back to at least 1215, when a group of English barons rebelled against King John’s abuses. The Magna Carta—“Great Charter”—ended the rebellion by guaranteeing certain basic liberties. Its Clause 39 has been recognized as the most important predecessor of modern due process doctrine, providing that “No free-man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

Further, as Professors Nathan S. Chapman and Michael W. McConnell explain, the meaning of “due process of law” was “driven . . . by the increasing separation of lawmaking from law enforcing and law interpreting.” From “at least the middle of the fourteenth century,” due process of law “consistently referred to the guarantee of legal judgment in a case by an authorized court in accordance with settled law. It entailed an exercise of what came to be known as the judicial power to interpret and apply standing law to a specific legal dispute.” In short, the government’s deprivation of private rights is legitimate only if “preceded by certain procedural protections characteristic of judicial process.” Codifying these rule-of-law principles imported from English law, our Constitution guarantees due process of law.

Although many of the cases interpreting this guarantee have been about due process of law in court, due process principles also apply to the executive branch’s law enforcement actions. As the regulatory state—the portion of the executive branch charged with regulating private parties’ conduct—has grown, the problem of the executive branch failing to respect due process of law has increased in tandem.

A constellation of distinct but interrelated due process deficits has arisen as the regulatory state has grown larger and gradually supplanted the courts’ traditional role in resolving disputes. Among the most important of these deficits are lack of notice to the affected persons, delay or denial of access to court, lack of impartial adjudicators, agency failure to respond promptly to allegations of wrongdoing, disproportionate and unfair penalties, and lack of democratic accountability.

  1. Lack of Notice and Delay or Denial of Access to Court

Agency resolution of disputes is purportedly less formal, quicker, and cheaper than litigation and thus attractive to the government and regulated parties. But all too often agencies take advantage of relaxed procedural standards, established by the agencies themselves, to trammel the rights of private parties who are trapped in administrative limbo and prohibited from seeking review in a court of law until all administrative proceedings have been exhausted.

One of the most basic due process protections is that liability for wrongdoing should be imposed only after notice and a fair opportunity to respond. Consider the abuse of this principle in the case of PLF clients Mike and Chantell Sackett. They wanted to build their dream house on what the EPA asserted was a federally protected wetland. The Sacketts were baffled as to why they received a compliance order out of the blue to cease construction on their lot and restore the building site to its original condition. Their lot was in a residential subdivision, where most of their neighbors’ properties were not designated wetlands. Nor did their property have any direct connection to any body of water. Yet the EPA provided them with no notice of violation and no opportunity to contest the designation. The Supreme Court reversed the government’s position 9–0, securing the Sacketts’ right to contest the EPA’s determination in federal court. Nonetheless, it remains troubling that the Sacketts were denied a fair or reasonable opportunity to be heard by the agency before it issued a coercive (and wrongheaded) compliance order.

  1. Lack of Impartial Adjudicators

Imagine a criminal trial where the prosecutor was also the judge. It is easy to understand why such a proceeding would be unfair. Traditional rules of due process of law and judicial ethics exist to ensure a judge’s impartiality and independence. Yet in many agency proceedings, that presumption is flipped on its head. The agency officials in charge of adjudicating cases (the judges) are not independent from enforcement staff (the prosecutors). Instead, the “judges” are full-time employees of the regulatory agency, sometimes with investigative or enforcement responsibilities. They have natural biases toward preserving their agency’s powers and assume all those being investigated are scofflaws. Agency proceedings unsurprisingly are biased in the agency’s favor.

  1. Failure to Respond to Allegations of Wrongdoing Promptly

Although agencies are in theory supposed to be capable of resolving disputes more quickly than courts, all too often they fail to resolve allegations of wrongdoing promptly. Take the case of John Duarte, a fourth generation farmer who was investigated by the Army Corps of Engineers for having vernal pools (essentially large puddles) on his land. An observer from the Army Corps observed Duarte’s employee not plowing around the vernal pools as he was supposed to do. Instead of pointing out the error immediately, the Army Corps did not inform Duarte of this supposed violation of the Clean Water Act until two weeks later, when his seasonal plowing was already almost done and any opportunity to protect the supposedly vulnerable pools had passed. Because of the Army Corps’s two-week delay, fines had steadily been accumulating before Duarte was notified of any possible problem. It appeared as though the Corps cared more about collecting significant fines than about actually protecting the environment.

  1. Disproportionate and Unfair Penalties

Though fines may sometimes be appropriate to settle a matter, agencies routinely have abused this authority by imposing crushing, runaway fines disproportionate to any alleged wrong. Broad interpretations of the Clean Water Act and other environmental statutes mean that property owners are surprised to learn that what they regarded as innocuous conduct can make them targets of enforcement action. Take the case of Joe Robertson, the owner of a small Montana property, who built ponds in the path of a small mountain water channel to protect his land from forest fires. The EPA declared that channel a “navigable water” regulated by the Clean Water Act, despite the channel holding the volume comparable to a couple of garden hoses and being 40 miles away from the nearest actually navigable water. The government nonetheless zealously pursued its case against Robertson, and he was sent to prison for 18 months and ordered to pay $130,000 in restitution.

To avoid disproportionate outcomes like that in Robertson’s case, agencies should declare by regulation that, for a criminal prosecution or a civil penalty greater than $5,000 to be threatened or imposed, the offending conduct must have been deliberate and specifically directed at the prohibited outcome. Because overly broad interpretations of the Clean Water Act have been a common source of due process abuse, the EPA should clarify that for large penalties to be sought under this statute, the offending conduct must constitute a common law (public or private) nuisance. If the nuisance standard is not met, the EPA should limit itself to minor financial penalties or remedial orders to stop or alter existing conduct.

  1. Lack of Democratic Accountability

Finally, agencies must be accountable for their administrative enforcement decisions. Agencies must not authorize unaccountable lower-level civil servants to issue rules that bind the public and thereby deny the public scrutiny and accountability our Constitution demands.

The Solutions

What are the solutions to restore the separation of powers?

Arbitrary and unfair agency actions should be challenged in court and subject to de novo review. PLF has already won important victories in this area, including Sackett v. EPA (lack of fair notice, unreasonable penalties threatened, delayed access to courts) and Johnson v. EPA (unreasonable penalties, unfair rules of evidence).

Reforms within the executive branch: President Trump issued a Regulatory Bill of Rights Executive Order that set forth 10 important due process principles and commanded agencies to take steps to make certain that these due process rights were respected. Unfortunately, President Biden withdrew that executive order. It should be reinstated. Due process is a fundamental principle of law, not a partisan issue.

Agencies should promulgate rules to improve democratic accountability requiring rules to be promulgated only by presidentially appointed and Senate confirmed appointees. During the Trump Administration, the Department of Health and Human Services withdrew all authorizations for agency employees to issue regulations, but the agency reverted to its old practice under the Biden Administration.

IV

When Emergency Powers Are Wrongly Used to Tackle Chronic Problems

The Problem

What’s the problem with government’s reliance on emergency powers?

As Democratic operative Rahm Emanuel once mused, “Never let a good crisis go to waste. It’s an opportunity to do the things you once thought were impossible.” Emergency powers are frequently abused, at least in part because executives don’t understand—or pretend not to understand—the difference between an emergency and a chronic problem. An emergency is a problem that has just “emerged” and may require an immediate action. Even so, Congress and state legislatures can be called to act shortly afterwards, and they should not shirk their duty and yield to executive decision-making.

By comparison, a chronic problem may be genuinely quite serious, but will nonetheless continue for months or years and is therefore amenable to legislative action on a conventional timetable. Despite these differences, many executives and those who favor more government control for other reasons intentionally blur the distinction or rationalize their abuse of emergency powers for supposedly noble ends.

A key component of the problem is that assertions of power in the face of an “emergency” tend to continue far too long or become virtually permanent. “Nothing is so permanent,” Milton Friedman famously said, “as a temporary government program.” Consider the Tea Tasters Bureau, formed in 1897 in response to a wave of reports about impure tea. The problem eventually went away, but the Tea Tasters Bureau lasted another 99 years, until 1996. The Johnstown Flood Tax was passed in 1936 to clean up after a truly devastating natural disaster in Pennsylvania, and it’s still on the books today.

Once exercised, few executives want to yield their broad unilateral power. Because those unilateral assertions of power are not debated by a legislative body and subject to political and other compromises, they tend to seriously infringe individual liberty. Many state and local executives got a taste of this power, and like the senator-turned-emperor from Star Wars, they are loathe to give up their newfound powers.

Another key component of the problem is that it’s inherently difficult for central planners to make good decisions about how to manage a complex society, especially if they have to make decisions quickly or under pressure. Those decisions tend to be arbitrary, and personal or political bias by a single decision maker can lead to restrictions that don’t apply equally in similar situations. Such deficiencies may be unavoidable in the short run if action is truly required in response to a genuine emergency, and the costs may be limited if the emergency expires quickly. If the assertion of power continues, however, the harm increases for various reasons.

We are all too familiar with the unilateral rule of governors and mayors in response to the COVID-19 pandemic. Although emergencies may require swift, initial responses, time allows legislators to fulfill their constitutional duty as the people’s representatives who make law, and for courts to constrain the worst abuses of power.

The Solutions

What are the solutions?

Model legislation that limits the duration of emergency powers and subject their exercise to review by other branches; key components: requiring exercise of emergency power to be narrowly tailored for a compelling purpose; automatic sunset dates for emergency orders.

Substantive legislation that limits the type of emergency power that can be exercised by different officials or the situations when such power can be exercised.

Court decisions that overturn or severely limit the exercise of emergency powers that infringe constitutional rights (that are broadly defined) and apply them unequally.

V

What’s Wrong with an “Independent” and Unaccountable Regulatory State?

The Problem

What’s the problem?

Early progressives (during the late nineteenth and early twentieth centuries) were openly hostile to the Constitution’s separation of powers because they understood that a separation of powers that protects individual liberty prevented the centralization of government power in regulatory agencies that they thought could more efficiently manage society based on expert knowledge. Modern progressives share many of these same biases against rule by the people in favor of rule by elites. The problem is that modern progressives have realized their intellectual ancestors’ vision and have largely undermined the important democratic controls that ensured our government is based on the consent of the governed.

For many decades, the progressives were frustrated in their attempts to subvert the U.S. Constitution to allow the concentration of power in elites that were insulated from political control. But starting in the mid-1930s, Congress started enacting regulatory structures that violated constitutional principles to: (1) make certain regulatory actors were insulated from political or democratic control, i.e., “independent,” and (2) remove other constitutional checks on presidential control of other government actions that regulate the public.

“Independence”

What’s wrong with agency “independence?”

“Independence” can mean many things, such as the financial independence not to work for or answer to others. That’s a desirable goal for individuals seeking freedom for themselves, but for federal government agencies, “independence” means a lack of accountability to the American people and their elected representatives. Within the regulatory state, there are various ways the concept of “independence” comes up. They present similar problems.

Congress has increasingly created “independent agencies,” so named because a statute limits presidential direction or control of the agency’s operation and sometimes even the selection of its officers. Congress increases agency independence and reduces democratic input by providing agency officials with protection from removal (i.e., firing) by anyone except for limited reasons, allowing the agency to set its own budget and staffing levels and limiting the ability of the president to coordinate or review its regulatory activity.

It’s bad enough when Congress grants any executive department or agency expansive and ill-defined rulemaking and enforcement discretion to regulate and coerce citizens without Congress making important policy decisions. Attempting to limit presidential control over such discretion, however, exacerbates that problem and makes “independent agencies” answerable to no one. That’s often unconstitutional, since the Constitution does not give Congress power to create new branches of government or micromanage the way the President runs the executive branch.

“Politics”

Should “politics” influence agency policy?

Congress also sometimes seeks to insulate agencies or parts of executive departments from purported “political” influences, but that is just another word for “democratic” influence and control. Career staff in agencies perform many vital tasks, including scientific research and investigations. There are strong norms against partisan manipulation of basic research, especially for routine and continuing functions like calculation of unemployment or inflation rates. Yet when new policy problems arise, what questions to study or the rigor or transparency of the process are just two of the many matters that require supervision and executive review. More importantly, even undisputed facts and findings, which rarely exist, do not automatically generate an obvious policy response.

The argument for “independence” often mirrors an old justification for the growth of the regulatory state that has been discredited in scholarly circles but is still invoked by regulators themselves and their activist defenders. The argument is that regulators are experts and that they can regulate our lives in a “neutral” manner. There is no way to take politics out of policymaking, including reliance on actual or self-styled experts for part of or the entire policymaking process. To begin with, the operation of scientific discovery is distorted within government agencies, and uncritical reliance on government experts poses special risks.

A majority of renowned experts (free of government influence) have been spectacularly wrong about some subjects, such as the decades-long rejection by the American medical establishment of Joseph Lister’s research in germ theory and how to prevent bacterial infections from spreading. The scientific truth is even slower to emerge when government agencies have a subconscious or conscious reason to fund or rally-around conclusions that augment the agency’s importance or growth.

And even when regulators can determine something with reasonable certainty, there are many other factors that influence policy responses, none of which are automatic or neutral in the manner regulators or other experts make them seem. Other factors include the knowledge or uncertainty of other related facts and priorities, what the range of regulatory alternatives are and how well each may work in real-world settings, the estimated benefits and costs of each alternative, including market-based or tort responses, the tradeoffs with other values, the importance of distributional effects of regulation, and one huge variable that regulators rarely admit, the possibility of unintended consequences.

Regulators also are not neutral in their analysis and decisions, even if they possess expertise in all fields of knowledge, because they have a strong, natural incentive to enlarge their own powers, prestige, budget, staffing, and influence. Even if that bias could be eliminated, and it simply can’t, the bottom line is that regulations that have the force of law must be imposed by democratically accountable officials so that our government operates by the consent of the governed. That generally requires principal agency officers (such as department heads and assistant secretaries) who have been appointed by the President and confirmed by the Senate to make all significant government decisions.

Congress

What if Congress can’t or won’t act?

One final justification for the regulatory state is blatantly antidemocratic, i.e., that legislatures can’t be trusted to get things right or that partisan gridlock prevents Congress and other legislators from doing the “right” thing. As a result, the argument is that only independent government experts who are politically free can establish the “right” level of regulation, and their independence supposedly allows them to make the “right” policy choices.

Even if Congress or state legislatures could be relieved of their job of legislating, the Constitution’s framers thought too much ill-considered law was a greater risk than too little. The possibility of gridlock is a feature, rather than a bug, in our constitutional system, and it enables the legislature to resist special interests (or “factions”) to promote compromise that is more likely to result in legislation that is broadly supported and promotes the public good.

In contrast, specialized agency missions, especially if augmented by independence from political control, cause tunnel vision. Even administrative state superfan Justice Stephen Breyer recognized this, writing that agency decisions can reflect “an agency’s supreme confidence in the importance of its own mission to the point where it leaves common sense aside.”

Trying to “depoliticize” policy also just shifts responsibility; if instead of passing laws, Members of Congress pass the buck to unaccountable agency bureaucrats, they can claim credit for “doing something” without taking responsibility for the ultimate policy decisions. Democracy may be messy and hard work, but there is no better way to debate and decide issues of the highest importance.

Promoting Accountability

How does the Constitution promote democratic government and political accountability?

The Constitution’s framers understood that the president couldn’t run the executive branch alone and would need a staff to manage it. But they carefully crafted several constitutional provisions to ensure accountability to the people. For example, Article II, Section 1 of the Constitution explains that all executive power is vested in the president alone. To reinforce that constitutional grant of authority, all officers of the United States must be appointed in a way that guarantees their accountability to the president and, ultimately, to the people. Pursuant to the Appointments Clause, all agency heads and other principal officers must be appointed by the president and confirmed by the Senate. All inferior officers must be appointed in the same manner unless Congress, by law, vests the appointment in the president alone, courts, or department heads.

Moreover, the Supreme Court held that only officers appointed in this manner can exercise significant authority under the laws of the United States. In 1976, the Supreme Court held in a landmark case, Buckley v. Valeo, that rulemaking is a task that only officers of the United States can perform, but it didn’t decide what level of officer may issue rules. Subsequent cases strongly support the conclusion that only principal officers appointed by the president and confirmed by the Senate may issue final rules binding on the public.

And yet, agencies routinely violate this constitutional principle by delegating rulemaking authority to career bureaucrats. Pacific Legal Foundation tracked 17 years of Health and Human Services regulations to find that 77 percent were unconstitutionally issued without principal agency officer approval.

Unelected, unaccountable individuals can’t lawfully be given independence to “make” law free from supervision or political accountability. Instead of taking politics out of policymaking, it takes the American people out of policymaking by insulating agency officials from accountability. Lord Acton famously noted, “Power tends to corrupt, and absolute power corrupts absolutely.” Agency officials and staff who are largely free from supervision and political accountability obtain unacceptable, concentrated power.

Given that danger, the framers were very careful to make lawmaking anything but efficient, easy, or apolitical, and the same should be true for issuing regulations that bind the public.

The Solutions

What are the solutions?

Ensure agency decisions—particularly those that bind the public—are made by politically accountable officials instead of lower-level agency employees.

Remove tenure protections for officials who exercise executive power so they are accountable either to the agency head or directly to the President.

Return legislative authority back to Congress. Too often Congress passes broad laws with delegations of authority to agency officials. Rather than open up chasms that invite increasing agency lawmaking, Congress should limit the gaps for agency officials to fill in.

VI

Why Judicial Bias Toward Agencies Is Unconstitutional

The Problem

What is the problem?

For much of the past 75 years, judges have wrongly deferred to a regulatory agency’s interpretation of laws it is charged with carrying out, regulations the agency created, and the agency’s factual determinations when it brings enforcement actions against ordinary Americans. The courts have sometimes defended this deference as a show of respect or comity to a coordinate branch of government, but in many cases, such deference to a regulatory agency is at the expense of being a neutral or fair arbiter. It amounts to systemic bias in favor of the government and against private citizens.

In showing “deference,” judges abdicate their duty to “say what the law is.” They also fail to render independent, impartial judgments when they put a thumb on the scale in favor of the government. That violates a judge’s duty and subverts the adversarial system of adjudication that has been central to Anglo-American legal tradition for centuries.

The most well-known abdication of judicial responsibility began in Chevron v. Natural Resources Defense Council (1984), when the Supreme Court announced a judicial rule that an agency’s construction of a statute is entitled to considerable weight if the statute’s meaning is “ambiguous” and the agency’s interpretation is a reasonable one. This Chevron doctrine continues to be refined, but it is still improper. Under the “major questions” exception, courts will often not defer to an agency’s view on questions of major economic or social significance, but what counts as “major” remains unclear. The exception also begs the question of why the courts should not defer to the government on major questions but it’s ok for them to defer to the government on other matters that are still very important to some Americans.

Other rulings specify the deference courts should apply when they consider an agency’s interpretation of its own rules. Until recently, the two principal cases in this area were Bowles v. Seminole Rock & Sand Co. (1945) and Auer v. Robbins (1997). They held that an agency’s interpretation of its own rules receives extraordinary deference. In Kisor v. Wilkie (2019), the Court significantly departed from the Seminole Rock/Auer approach to deference, even though it did not explicitly overrule these cases. Kisor holds that an agency’s interpretation of its own rules only receives deference if (1) the rule is unclear and (2) the agency’s interpretation is reasonable, foreseeable, official, and reflects its particular knowledge and skill set.

United States v. Mead (2001) and Skidmore v. Swift & Co. (1944) govern the level of deference given to informal agency interpretations, such as interpretative rules, policy statements, informal adjudications, advisory letters, and policy briefs. When looking at these informal agency interpretations, the court defers to the agency only to the extent its reasoning has the power to persuade, i.e., Skidmore/Mead deference is not necessarily very deferential.

Several Supreme Court justices and lower court judges have rightly questioned the legality of these and other judicial deference doctrines, especially since they appear to violate the Administrative Procedure Act and judges’ constitutional duties.

It is worth addressing why previous generations of judges seemed willing to defer on legal interpretations. The truth is that deference notions resonated with both ideological sides of the bench during the last three decades of the twentieth century, but for different reasons. Liberal appointees favored expansive government action and had faith in the competence of administrative experts to write binding rules for a complex world. Conservative appointees continued to react to what they deemed the “judicial activism” of the Warren and Burger Courts, unmoored from neutral principles and grounded in personal preferences. Chevron, after all, was a case about judicial deference to an agency during the Reagan administration.

Some helpful reforms of judicial deference doctrines are likely, but ending them is far better than mending them, especially if some watered-down deference doctrines are still unconstitutional.

The Solutions

What are the solutions?

Strategic litigation is necessary to bring the most compelling cases with sympathetic facts and sound legal arguments to help convince the Supreme Court to overrule its many wrongful deference doctrines.

Congress should amend the Administrative Procedure Act (the federal law governing agency rulemaking) or pass other laws to make even clearer that courts may not show bias for the government and that close calls should go to ordinary Americans, rather than the government.

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PLF is a national nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. We sue the government in court when our clients’ rights protected by the Constitution are violated, and advocate for legislative and regulatory reforms in the other branches of government. Started in 1973 in California, PLF now seeks reform across the country, including suits filed nationwide, scoring precedent-setting victories for our clients, with an unmatched track record at the United States Supreme Court.