The Separation of Powers: {Explained}

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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