“The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” – James Madison, Federalist 47 Tyranny comes from accumulation of power in one branch of government.
Growth
Madison today would be horrified that the administrative state has added both legislative and judicial powers to its executive power. It continues to accrete legislative power through rulemaking. It has acquired judicial power from exercise of administrative interpretative power.
Taken together American administrative agencies have become an unaccountable, unelected fourth branch of government. A recent Supreme Court decision largely reaffirms the surrender of these powers by the legislative and judicial branches to executive agencies.
Legislative abdication
Legislatures have come to use sweeping statements as a way to dodge responsibility for regulatory action while taking credit for supporting broad sentiment. This political technique dodges electoral accountability quite effectively. They make an overly broad resolution and delegate law making power to an executive branch agency.
Judicial Atrophy
Auer and Chevron SCOTUS decisions do the similar things for the judicial branch. They hold that federal courts must yield to an agency’s interpretation of ambiguous regulations produced by that agency. There is a caveat that all other tools of interpretation have been exhausted.
Auer should be overturned by the SCOTUS not by Congress. The majority is abdicating their duty to independently interpret the law. SCOTUS outsources its responsibility to agencies by not making decisions when required.
An agency’s interpretation should be used as evidence, perhaps even strong evidence for ambiguous regulations. Agencies should not receive deference in interpretive power. If the court agrees that the agency’s reading is the best one, Auer does no real work. The doctrine matters only when a court would conclude that the agency’s interpretation is not the best or fairest reading of the regulation.
Reversion to first principles
The states have begun to roll back their deference doctrines. Many states have suffered from excessive judicial deference. In 2018, Arizona passed legislation requiring Arizona courts to decide all questions of law without deference to agencies.
States looking to follow Arizona should consider making state courts review agency rules and legislation without deference to agency interpretation. Such an Administrative Procedures Act (APA) would tighten notice-and comment procedures. It would ensure agencies give public notice when issuing, amending, or newly interpreting legally binding regulations.
Such reform is key to resisting regulatory creep. Regulatory creep happens when agencies secretly reinterpret vague statutes. In doing so they expand regulations on unknowing businesses and citizens working in good faith. The APA gives legislatures a more robust role in regulatory development. Greater involvement from legislatures should produce less ambiguity and more uniformity in interpretation. That way the rules will undergo debate in the legislature, which is an inherently clarifying process.
Conclusion
Limiting deference to agencies is a step toward a return to the Madisonian principle of separation of powers. Separation of powers prevents one branch from tyrannically accumulating all powers to itself. The APA only remedies this problem at the state level. Tyranny comes from accumulation of power in one branch of government. Congress could learn a thing or two from its siblings and pass similar legislation. This would return the separation of powers at all levels of government.