Today, countless federal agencies have consolidated legislative, executive, and judicial powers and are not accountable to the people. Bureaucrats, and not our elected representatives in Congress, make most of the laws that govern us.
PLF to Supreme Court: courts shouldn’t look the other way when federal agencies seize power Congress never gave them
The fundamental principles of our constitution are that government power must be divided up, rather than concentrated, and those who exercise it must be accountable to the people. That’s why the founding fathers divided power between the federal and state governments and further distributed federal power among three independent branches. They saw all too clearly that the concentration of too much power in too few hands is the greatest threat to individual liberty.
We’ve strayed a long way from that ideal. Today, countless federal agencies have consolidated legislative, executive, and judicial powers and are not accountable to the people. Bureaucrats, and not our elected representatives in Congress, make most of the laws that govern us. They have a free hand to enforce the laws they write and can even change those laws through creative interpretation. And they largely do this outside of the courts, relying instead on administrative law judges that agencies themselves select.
The writers of the Constitution would have thought this development impossible. They assumed each branch of government would jealously guard its power from encroachment by any other branch. Instead, Congress and the courts have willingly ceded their responsibilities to federal agencies.
The chief culprit undermining the Constitution’s separation of powers is Chevron deference, a doctrine invented by the courts to avoid scrutinizing agency decisions. According to it, courts must defer to an agency’s interpretation of a statute unless the court finds it patently unreasonable (which they are wont to do). When Chevron deference applies, agencies win nearly 80% of cases, compared to 38% when courts don’t put a thumb on the scale in the government’s favor.
Chevron deference is doubly harmful: it discourages courts from properly scrutinizing agency actions and makes it harder for Congress to limit their power in the first place. If the meaning of a statute is principally determined by the bureaucrat rather than a neutral judge, it’s a pretty safe bet that she’ll maximize her power and minimize restraints regardless of what Congress actually wanted.
This week, PLF filed a petition in the Supreme Court urging it to push back against the latest expansion of this dangerous deference doctrine. According to the Ninth Circuit, courts should defer whenever an agency claims some power unless Congress has expressly forbidden it. In other words, agencies are no longer limited to the power Congress chooses to give them but can freely assert any power not expressly negated in a statute.
California Sea Urchin Commission v. U.S. Fish and Wildlife Service concerns the establishment of an otter population in Southern California. In the 1980s, the U.S. Fish and Wildlife Service feared that the species’ limited range made it vulnerable to extinction from a single catastrophe, like an oil spill. So it asked Congress for permission to create a new population to protect against this risk. Concerned about impacts to the surrounding fishery and the fishermen who depend on it, Congress granted the authority but imposed several mandatory strings to minimize those impacts. For example, it forbade the agency from criminally prosecuting anyone who accidentally got too near an otter in the fishery, a key protection allowing fishermen to continue their work.
Although the new population initially struggled, today, is is healthy and growing. The U.S. Geological Survey, which is responsible for monitoring the otter’s status, credits the Southern California population’s impressive growth rate with pushing the species over its recovery goal for the first time.
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