Probably the greatest single threat to American democracy today is the so-called Administrative State—a blanket term covering the army of federal and state regulatory agencies that govern every aspect of our lives from air pollution to the kinds of doorknobs we can have in our houses. These enormous agencies are not run by elected officials, but by hired bureaucrats who write rules that have the force of law—and who, thanks to a legal theory known as “deference,” can decide the scope of their own power, confident that judges will let them do as they please. Now the U.S. Supreme Court is poised to reconsider that “deference” theory, and the Goldwater Institute filed a brief this morning urging the justices to do just that.
The case involves an obscure regulation adopted by the National Marine Fisheries Service (NMFS), the federal agency that regulates fishing companies. When Congress refused to pay for NMFS inspectors to ride along on boats to make sure companies are complying with various environmental regulations, NFMS decided to write a regulation forcing the companies to pay those inspectors’ salaries out of their own pockets. Of course, that’s very expensive—and nothing in the law actually provides for this. But the agency claimed it had the power to impose this requirement under a provision of the law that lets bureaucrats “prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery.” And a federal appellate court upheld the agency’s actions due to the “deference” theory—specifically, a kind of deference known as “Chevron deference,” which gets its name from a 1984 Supreme Court ruling called Chevron v. Natural Resources Defense Council.
Chevron deference says that when an agency interprets a law, judges will accept that interpretation unless it’s insanely off the mark. By giving bureaucrats such wide latitude, Chevron deference effectively lets regulators do whatever they like whenever Congress includes vague wording in a statute. In other words, the Chevron precedent allows these agencies extraordinary power to govern in ways that voters and their elected representatives never actually authorized.
Fortunately, judges and lawyers have grown increasingly skeptical of agency powers in recent years, and of the legal precedents, such as Chevron, that expand agency power so much. The Supreme Court justices have expressed discomfort with the Chevron precedent in several recent cases, and in the NMFS case, they signaled their interest in this problem by declaring that they would consider whether to overrule the Chevron case itself.
Our brief urges them to do just that, pointing out that many states have already abolished their own state-level versions of Chevron, and this has not led to any untoward consequences. Thanks to legislation created by the Goldwater Institute, Arizona and other states have repudiated the idea of courts deferring to agencies—and this hasn’t blocked these agencies from protecting the public; on the contrary, the results have been more accountable regulators, and a system that better protects the due process all Americans are entitled to.
What’s more, we point out that defenders of the Administrative State expressly embrace legal theories that the authors of our Constitution rejected. For example, Harvard Law professor Adrian Vermeule, who recently gained notoriety as a champion of “common good constitutionalism,” wrote a book in 2016 in which he praised deference on the grounds that it represents the “abnegation”—that is, the surrender—of law: “The law itself decided to bow to the administrative state,” he writes, “to leash itself—in Francis Bacon’s image—‘under the throne.’”
Bacon was a seventeenth-century lawyer and philosopher who wrote that judges should be “lions under the throne,” by which he meant that judges should be subservient to the king. But it need hardly be said that our constitutional system was designed on a different basis: it separates powers so that judges are not subservient. Bacon’s arch-nemesis was Sir Edward Coke, another seventeenth-century lawyer who argued that the king was not above the law, but on the contrary, was subordinate to the law. And it was Lord Coke, not Bacon, whom the American founding fathers looked to for legal guidance.
There could hardly be better proof that the overreach of today’s regulatory agencies is motivated by principles contrary to our constitutional system. The founders wanted power to be accountable—and subjected to checks and balances—so that judges would not defer, or “leash themselves under the throne,” but would instead protect individual freedom by resisting unauthorized actions by Congress, the president, or other government officials. It’s time for the Supreme Court to restore that principle to its rightful place in our constitutional order, and that begins by overruling Chevron.
You can read our brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
