Last month, Senator Mike Lee (R., Utah) and like-minded members of Congress launched an “Article I Project” to restore the separation of powers. Today they announced that they are introducing legislation to advance that goal.
The legislation targets the judicial practice of deferring to agencies’ interpretations of the laws from which they derive their regulatory powers, a practice named “Chevron deference” after a 1984 Supreme Court case. The Article I Project has a short paper on the subject, from which I will quote:
For three decades, Chevron deference has helped to midwife a kind of shadow government operating within the federal Executive. This “Fourth Branch” of government imposes and enforces the vast majority of new federal laws without being subject to public consent or checks and balances.
Chevron deference empowers this government-without-consent. It conveniences lazy and accountability-resistant politicians and power-hungry bureaucrats at the expense of the American people’s rights. And so Chevron must go. . . .
Chevron deference is hardly the only problem with the Administrative State, nor is it the biggest. But it is one of the least defensible problems, with a clear and obvious fix.
The legislation instructs the courts to conduct their own review of legal issues arising from agency regulations.
Some conservatives will be wary about an invitation for the courts to second-guess more of the acts of other branches of government. It’s a wariness I share. But the argument for judicial deference to unelected regulators is weaker than the argument for judicial deference to legislators. The two forms of deference can even be said to work at cross purposes. In those vast areas where the Constitution leaves policy questions open, we should want legislators rather than judges or bureaucrats to supply the answers. Arguably, that means that judges should defer to legislatures but also make sure that regulators are following legislatures’ commands.
The white paper speaks of ending Chevron, but it is not clear to me that the legislation can accomplish that. Courts might still end up giving weight to agency interpretations in determining the meaning of statutes. But the law could weaken that weight.