The Separation of Powers: {Explained}
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 undermines the courts’ ability to be 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 with 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. In July 2024, the Supreme Court overturned Chevron in Loper Bright v. Raimondo, ending nearly four decades of the Chevron doctrine being the law of the land. “By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron does not prevent judges from making policy. It prevents them from judging,” Chief Justice John Roberts wrote in his majority opinion.
“Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous,” the Chief Justice concluded.
While no doubt a great victory for liberty, the overturning of Chevron leaves some questions of deference unresolved. Under the “major questions” exception, courts often will not defer to an agency’s view on questions of major economic or social significance, but what counts as “major” remains unclear.
Courts have long applied a different, more deferential standard when considering an agency’s interpretation of its own rules. Until 2019, 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 receives deference only 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 because 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 to agency interpretations. The truth is that deference notions resonated with both ideological sides of the bench during the last three decades of the 20th 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. With the overturning of Chevron, now is the prime opportunity to reevaluate agency deference and establish new precedent that is more in line with the Founding Fathers’ vision of the Constitution.
States can adopt reforms to ensure their courts do not defer to agency interpretations of the law. See which states have eliminated improper judicial deference to agencies.
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.
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.