The current state of affairs often requires judges to side with the rulemaking power of the administrative state even when “they feel it has made the wrong call on a regulation.” But a case currently before them could change that.
Retired U.S. Marine James Kisor, 75, challenged a lower court’s ruling that deferred to an interpretation by the Department of Veterans Affairs, or VA, of its regulations in denying his disability benefits arising from battle-related post-traumatic stress disorder (PTSD).
In his appeal, Kisor said the justices should get rid of Auer deference as courts are best equipped to resolve the meaning of regulations.
The Court is currently stacked with Justices who have an issue with excessive regulatory force. Agencies that accumulate power by issuing “vague or burdensome regulations” that they then “enforce…according to the policy preferences of unelected administrators.”
We agree that this is a problem.
The presumption is that by eliminating or paring back Auer deference courts would be better equipped to constrain that abuse. But what about judicial activism?
While it appears as if the Trump Administration is doing a better job (than any President in modern history) of nominating judges more interested in interpreting law than making it, judges are people too. What’s to prevent them from crafting burdensome opinions that result in excessive regulatory force?
Is that the lesser of two evils?
At present unelected bureaucrats create rules then enforce them. Congress ceded that power deliberately. The Constitution at least empowers unelected judges to rein in excessive use of regulatory force by the other branches. And while it is not the perfect solution, there isn’t one.
Human nature makes perfect government impossible. We can only hope for the best worst scenario, and less administrative power is a step in the right direction.
A Constitutionally retrained government would put rulemaking back in the hands of Congress. If neither Congress nor bureaucrats are willing to do that, perhaps judges must. With the understanding that Congress must keep an eye on judges and reign them in when needed.