Opinion: Why ‘Chevron deference’ raises serious concerns about the separation of powers
Individuals with special expertise can be helpful in trying to understand and respond to challenges that are not well understood by a layperson. That’s why we go to doctors.
What’s the role in government for those with special expertise, though? In the mid-20th century, as government responsibilities grew, some said that modern life involved so many complicated matters that only credentialed experts could adequately devise rules to govern it — meaning an increased role for executive branch agencies.
Now, however, the role of experts in making public policy is highly contested, as seen in current debates over how the response to the COVID-19 pandemic was handled.
One source of tension is the question of how the core constitutional principles of accountability to citizens (in terms of adherence to constitutional text and to the will of voters expressed through the representative branches) can coexist with delegation of authority to nonelected specialists.
When the framers of the Constitution finished their work in Philadelphia in 1787, there were very few specific rights listed in the document they had created, but there was plenty of “separation of powers.” That concept, identified by the French theorist Montesquieu, could perhaps be thought of as the theme of the document.
The Constitution is structured as seven articles. After its ratification in 1789, all additions were made as amendments. The first three articles each deal with a discrete branch of the national government: Article 1 describes the power of Congress, Article 2 describes the executive branch and Article 3 the judiciary. (Article 4 deals with the states, Article 5 with the amendment process, Article 6 with general matters and Article 7 with the ratification process.)
By enumerating the powers of each branch in separate articles, the Constitution makes evident an intention that each would function with discrete structure, responsibilities and powers. This is the crux of the separation of powers concept. For the framers, this was not just an efficient way of organizing to get things done. It was a core principle.
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When John Adams drafted a constitution for the state of Massachusetts in 1780, he explicitly endorsed this principle in emphatic terms:
“In the government of the commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws, and not of men.”
That last point is significant. If one person (as with an executive) or a group of people (judges or legislators) can independently exercise all government powers, power is concentrated and unchecked.
As the U.S. Supreme Court explained in 1965: “if governmental power is fractionalized, if a given policy can be implemented only by a combination of legislative enactment, judicial application, and executive implementation, no man or group of men will be able to impose its unchecked will.”
Take a specific example from the Constitution. Section 9 of Article 1 provides that Congress cannot pass a “bill of attainder.” As the helpful “Constitution Annotated” site explains: “A bill of attainder is legislation that imposes punishment on a specific person or group of people without a judicial trial.” The problem seems obvious — the legislature would be making a law, then singling out violators and imposing punishment. In essence, exercising the powers of every branch.
One of the issues the Supreme Court will be addressing this term is the separation of powers as it relates to the executive branch. The background is a 1984 decision of the court, Chevron v. Natural Resources Defense Council. In that case, the court upheld an Environmental Protection Agency regulation, ruling that when an administrative agency issues a regulation that is not directly addressed by the legislation the agency is supposed to be enforcing, the courts will defer to the agency rule as long as it is “reasonable.” This approach to assessing administrative agency rules is referred to as “Chevron deference.”
Justice Clarence Thomas has noted that this approach “raises serious separation-of-powers questions.” Justice Neil Gorsuch argues that unmerited deference to agencies means the courts are telling those who come to court to understand “their rights and duties under law” are being told “to go ask a bureaucrat.” This means placing “a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else.”
Last term, the court agreed to revisit the Chevron decision in Loper Bright Enterprises v. Raimondo, a case it will decide this term (along with some other cases raising the same issues). These cases involve a National Marine Fisheries regulation on fishing boats. Here is how the challengers to the rule describe their concern:
“Operating fishing vessels in the Atlantic is hard work. The vessel operators tend to be small, family-owned enterprises. The profit margins are tight, and the quarters onboard are tighter still. The typical vessel has room for only five or six individuals. Nonetheless, the Magnuson-Stevens Act (MSA) requires petitioners and other vessel owners to make room onboard for federal observers who can oversee operations to ensure compliance with a slew of federal regulations. That is an extraordinary imposition that few would tolerate on dry land. But without any express statutory authorization, the National Marine Fisheries Service (NMFS) has decided to go one very large step further and require petitioners to pay the salaries of government-mandated monitors who take up valuable space on their vessels and oversee their operations.”
Under the current rule, the court would presumably have to uphold this rule. The Loper case gives the court an opportunity to rethink and possibly correct this approach.
Of course, deferring to “experts” in administrative agencies is arguably efficient. Indeed, Congress may want to leave some matters for agencies to decide so it can avoid backlash against unpopular decisions. That, however, is not the point. Congress, not administrative agencies, are tasked with making the law. Those agencies are only to enforce laws Congress has already made.
Allowing agencies to make rules untethered to statutory authorization is an abdication of the Supreme Court’s role as guardian of the Constitution and the laws made pursuant to it. Surely it must have the power to correct an overreach. This is not — as one overwrought commentary charges — a “power grab” by the court, but a needed correction to align with our foundational commitment to the separation of powers.
William C. Duncan is the constitutional law and religious freedom fellow for Sutherland Institute, an independent nonpartisan public policy thinktank in Salt Lake City.
