(RightWing.org) – Separation of powers is a bedrock of America’s democratic republic. In 1788, James Madison penned Federalist 47. In it, he said, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.” Yet, over the last decade, the US Supreme Court (SCOTUS) has begun tackling whether Congress can delegate its authority to another entity, circumventing this critical principle of government.
In 1984 and 1997, the SCOTUS upheld two principles that many say violate the separation of powers. While the high court is slowly reversing the prior precedents, 11 states aren’t waiting. They’ve passed laws prohibiting the practice of allowing state courts to give deference to state government agency interpretations of law.
11 States Move to End Executive Agency Deference
In 1984, the SCOTUS ruled in Chevron USA v. Natural Res. Def. Council that when a legal question arises about a law a government agency interprets, a judge must defer to the government’s interpretation unless it obviously contradicts the law. In 1997, the justices ruled in Auer v. Robbins that the same standard applied regarding agencies interpreting their own rules.
According to the Heritage Foundation, the rulings effectively transferred Congress’ authority to write laws to the executive branch. Additionally, experts say the two orders also conflicted with the Administrative Procedures Act. The result led to confusion about how much deference government agencies should receive with their own interpretations of a law. This could allow agencies to expand their power through regulations, erode personal liberties, and create an unfair advantage over citizens.
Some say citizens often confront an unfair playing field when they challenge agencies because the two doctrines force judges to rubber-stamp an executive branch’s interpretation of a law. While the high court takes its time resolving the matter, 11 states have ended the practice of forcing courts to defer to state agencies.
Arizona, Kansas, Delaware, Florida, Ohio, Michigan, Mississippi, Tennessee, Utah, Wisconsin, and Wyoming ended the practice in their states.
Supreme Court Begins Putting Dent Agency Deference
Some believe the judiciary ceded its separation of powers limitations and gave up one of its core responsibilities. In essence, Chevron and Auer made themselves irrelevant by compromising their constitutional authority. That could be coming to an end.
In 2014, the SCOTUS began dismantling the two rulings. Justices began reinserting the non-delegation doctrine, asserting that Congress cannot give its legislative authority to another entity, either public or private, particularly the executive branch. The doctrine is derived from Article I, Section 1 of the US Constitution, which says, “All legislative powers herein granted shall be vested in a Congress of the United States. . . .”
While the high court works to untangle its precedent that eroded the separation of powers, Congress doesn’t have to wait. Like the states, it can pass a law and end the deference doctrine clearly, plainly, and immediately.
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