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Two cases before the Supreme Court provide an opportunity to reaffirm separation of powers

Sep 30, 2021 by Michael Pepson

Americans for Prosperity Foundation urges Supreme Court to reaffirm the Constitution prohibits unelected, unaccountable officials at federal agencies from claiming legislative and judicial powers

Americans for Prosperity Foundation recently filed friend-of-the-Court briefs in the U.S. Supreme Court in support of neither party in American Hospital Association v. Becerra and Becerra v. Empire Health Foundation.

In those briefs, it urged the Court to restore the equilibrium set by the U.S. Constitution’s system of separated powers and checks and balances by jettisoning judge-made law from the mid-80s that purports to grant unelected, unaccountable federal employees the power to act as legislature and judge, responsibilities the Constitution reserves for Congress and the federal courts.

Our system of government relies on the consent of the governed memorialized in the Constitution.  As set forth in the Constitution, the people have agreed on a system of separated powers, in which the legislative, executive, and judicial branches function as checks and balances on one another, ensuring accountability and protecting liberty.

Unelected administrative agents shouldn’t be exercising legislative powers

As Schoolhouse Rock’s “Three Ring Government” teaches, the Constitution tasks the democratically elected, politically accountable branches (Congress and the president) with resolving difficult policy questions through the deliberately arduous legislative process — not federal agencies through issuing “legislative rules,” i.e., regulations, that are said to have “the force of law.”

And when legal disputes arise as to the meaning of duly enacted federal statutes, the Constitution tasks the federal courts with independently saying what the law is in individual cases. This means that the Constitution does not grant legislative or judicial powers to the executive branch, nor does it permit the transfer of these powers to administrative bodies. Nowhere in the Constitution does it say or even suggest the people have agreed to be ruled by unelected, politically unaccountable government “experts.”

But over time judicially-developed “deference” regimes have emerged that effectively transfer core judicial and legislative power to these unelected federal bureaucrats, putting a thumb on the scale in favor of the nation’s most powerful litigant — the federal government — thereby rigging the game against the American people.  Now-Sixth Circuit Judge Amul Thapar summed this up well:

“Over time, courts have come to trust the administrative branch more and more. Rather than ‘trust,’ of course, we call it ‘deference.’ When agencies interpret an ambiguous statute, courts generally must defer.  When agencies interpret their own regulations, courts almost always must defer.  Agencies now can determine their own jurisdiction, i.e., whether they even have the authority to interpret a statute in the first place.  And an agency’s reading of a statute can now overturn a court’s interpretation of that statute. For good reason, jurists have begun to ask whether this state of affairs violates the separation of powers.”

How did this happen?

Sub-delegation of legislative power is undemocratic

In 1984 — the same year that gave us the “Walkman,” VCRs, Nintendo, and the Soviet Union’s boycott of the Olympics — a bare quorum (six justices) of the Supreme Court ruled in a case called Chevron v. NRDC that when Congress writes vague laws (as it often does) this somehow transfers to unelected federal agency officials legislative and judicial powers.

The Chevron theory claims that when Congress drafts “ambiguous” statutes, it implicitly transfers (“delegates” is the term of art) to administrative agents the authority to make generally applicable (and sometimes retroactive) “legislative rules” with the “force of law,” to which federal courts are then generally obliged to “defer” in any legal challenge to the government’s actions.

This means that under Chevron, federal bureaucrats are allowed to make “law” through issuing regulations and then to act as judge in their own cause by telling the federal courts what the law is.

This extraconstitutional power-transfer is profoundly undemocratic and far from constitutionally harmless. As Justice Neil Gorsuch has observed:

“Like a tower in the game of Jenga, pull out this block or that one and the tower may seem unaffected, especially if you do it with a bit of finesse — and the lawyers who come up with the justifications for the blending of powers have plenty of that. But keep pulling out blocks, and eventually what started out as a strong and stable tower will begin to teeter.”

Chevron removed foundational blocks from our Constitution’s system of checks and balances by transferring core judicial and legislative powers to the executive. That is a problem, for as Justice Gorsuch explained:

“By transferring more and more power from the legislature and judiciary to the executive, we alter piece by piece the framers’ work and risk the underlying values it was designed to serve.”

Those fundamental constitutionally enshrined values include “fair notice; protection for the inherent value of every individual person, including especially dissenting voices; democratic accountability; and the rule of law as administered by independent judges and juries.”

Chevron plainly threatens all of them.

A cover for Congress

The real-world harms to the American people flowing from the administrative excesses Chevron has enabled cannot be overstated.

As a practical matter, Chevron provided the pathway for bureaucrats housed within a warren of extraconstitutional administrative bodies to enforce unpopular policies, by claiming “force of law,” where no such law was ever enacted by Congress. This practice, which burdens businesses and restricts individual liberty, without fair notice of what the law prohibits or requires, should not be allowed to stand.

The judge-made mid-80s-vintage Chevron regime also harms our constitutional republic by allowing members of Congress to avoid making politically difficult decisions by enacting vague laws and passing the buck to federal agencies to set public policy under the guise of statutory interpretation.

In this way, Congress avoids accountability for tough policy choices — and the actions of federal agencies — and can instead engage in finger pointing.  Indeed, today’s political climate may well be attributable, in part, to cases like Chevron that authorize the blending of the legislative, executive, and judicial powers into various administrative bodies.

The Supreme Court should end this state of affairs. It should go without saying that the Constitution tasks Congress with setting public policy through legislation; unelected federal agency employees should not be allowed to exercise legislative powers and make broad policy decisions — often of national importance — under the guise of statutory interpretation.

Perhaps if Chevron is overruled it would incentivize, if not force, members of Congress to work together again in a collegial, constructive way to address the federal public policy challenges our country faces through sensible, consensus-based legislative solutions. This has happened before.

In the 1980s, for example, Ronald Reagan famously worked across the aisle with Tip O’Neil. And in the ’90s, Bill Clinton used “triangulation” to bridge divides between Democrats and Republicans. Maybe it is time to turn back the clock to the 80s and 90s, a period of relative peace and prosperity, where the political climate, albeit imperfect, was at least more civil and folks with different views were better able to work together to find constructive solutions to national public policy challenges.

Things may not have been perfect — they never are. But many of us who grew up then took for granted that under our system of government, there are two main political parties that generally would work together to find common ground and chart a moderate path; national elections — even the 2000 election — simply didn’t feel like potentially cataclysmic events. People, including elected officials, could more readily have different views without being disagreeable.

Perhaps that is because, to a far greater degree than today, the system of separated powers and checks and balances established by the Constitution was able to function as intended.

If the Court repudiates its 1984 foray into blending legislative and judicial powers within federal agencies, it may go a long way in bridging the unhealthy divides in this country and restoring some degree of unity and common fellowship.

Read Americans for Prosperity Foundation’s full briefs here and here.