Academic journal article Harvard Journal of Law & Public Policy

The President's Pen and the Bureaucrat's Fiefdom

Academic journal article Harvard Journal of Law & Public Policy

The President's Pen and the Bureaucrat's Fiefdom

Article excerpt

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (1)

The very first provision of the Constitution beyond the preamble, quoted above, specifies that the lawmaking power of the national government is to be exercised by Congress. A necessary corollary, recognized by the Supreme Court early in our nation's history, is that purely legislative powers can be exercised only by Congress, not by the executive or judicial branches of government. (2)

Of course, where to draw the line between purely legislative power that cannot be delegated, and permissible delegations of authority to fill in the details of a legislative judgment made by Congress, has proved to be a rather difficult task. The formula eventually worked out by the Supreme Court, one that upholds delegations as long as Congress "lay[s] down by legislative act an intelligible principle to which the person or body [authorized to fill in the details] is directed to conform," (3) sounds good in theory, but has not proved very helpful in practice, for several reasons. First, the Court has approved such broad delegations as to render the "intelligible principle" limitation virtually meaningless, and has not invalidated a law on unconstitutional delegation grounds since 1935. (4) As Justice White observed in his dissent in INS v. Chadha, (5) the "intelligible principle" through which agencies have attained enormous control over the economic affairs of the country has been held to include such formulations as "just and reasonable," (6) "public interest," (7) "public convenience, interest, or necessity," (8) and "unfair methods of competition." (9) In other words, the "intelligible principle" restriction on delegations of legislative power has amounted to no restriction at all and, as Justice Thomas recently noted, the Court "has abandoned all pretense of enforcing" it. (10)

Second, various deference doctrines created by the Supreme Court have exacerbated the problem that arose from failure to enforce the non-delegation doctrine. There is Chevron deference, pursuant to which the courts defer to administrative agency interpretations of ambiguous statutes as long as the interpretation is reasonable and not contrary to law. (11) There is Skidmore deference, (12) essentially a weaker version of Chevron deference. And there is Auerz deference, (13) pursuant to which the courts defer to an agency's interpretation of its own ambiguous regulation (no doubt implementing, under Chevron deference, an ambiguous statute!). My point here is not to provide a treatise on the nuances of the various deference doctrines, only to note that they have increasingly undermined the Constitution's basic separation of powers between the legislative and executive branches (and have resulted in an abdication of the judicial duty to interpret the law as well).

Several members of the Supreme Court have recently acknowledged the problem with the Court's deference doctrines. In Perez v. Mortgage Bankers Association, (14) for example, Justice Thomas took direct aim at the Auer deference doctrine. "These cases call into question the legitimacy of our precedents requiring deference to administrative interpretations of regulations," he wrote, adding:

   That line of precedents ... requires judges to defer to agency
   interpretations of regulations, thus, as happened in these
   cases, giving legal effect to the interpretations rather than
   the regulations themselves. Because this doctrine effects a
   transfer of the judicial power to an executive agency, it raises
   constitutional concerns. This line of precedents undermines
   our obligation to provide a judicial check on the other
   branches, and it subjects regulated parties to precisely the
   abuses that the Framers sought to prevent. (15)

Justice Thomas also acknowledged that the practice of giving binding effect to agency interpretations of regulations runs afoul of the non-delegation principle as well. …

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