Delegation and its Discontents

Abstract

Members of Congress as well as several current and former Supreme Court Justices have expressed alarm over what, in their view, is an increasingly dangerous usurpation of policy-making power by the administrative state. This seizure has been facilitated in large part by what they regard as the Supreme Court's misguided Chevron deference jurisprudence, which violates the separation of powers by tearing primary authority to interpret federal laws -- to "say what the law is," in Marbury v. Madison's venerable phrasing -- away from the federal judges to whom Article III has actually entrusted it. Members of Congress have advanced a pragmatic critique of Chevron which ticks through a host of practical problems they believe it creates. Their proposed remedy is to statutorily abolish Chevron and its progeny, and to make clear that federal courts have primary authority to resolve all ambiguities appearing in federal statutes. Several Justices -- particularly Thomas and Gorsuch -- have advanced the idea that statutory interpretation is an essential part of the powers granted to the federal Judiciary by Article III. They accordingly frame the authority to interpret laws, including genuinely ambiguous laws the interpretation of which requires some degree of policy-making, as an inalienable part of judicial power that Congress cannot delegate to administrative agencies. In the end, the goal of both the pragmatists in Congress and the essentialists on the Court is to restore the Framers' understanding of the separation of powers.

This Article challenges both the pragmatic and essentialist critiques of Chevron. Among other things, placing the interpretation of ambiguous federal statutes behind a judicial firewall reduces rather than increases Congress' ability to shape the meaning of the laws it passes. Through its oversight function, Congress can continually influence how agencies interpret and implement ambiguous statutes. Congress loses much of its influence over the post-enactment shape of federal law when courts, which are largely immune from legislative pressures, become its primary interpreters. Additionally, arguments that ground judicial interpretive primacy in Article III elide troubling counter-majoritarian difficulties, and may therefore replicate the dangers to individual liberty they seek to prevent. In particular, essentialists struggle to answer why unelected and politically unaccountable judges should make regulatory policy when faced with genuinely ambiguous statutory schemes. Rather than locating the interpretive power in Article III, the Article suggests, consistent with Chevron, that we situate it Article I. Congress has the constitutional authority to choose the primary interpreter of the laws it passes, and federal courts retain the critical function of ensuring that agencies' assertions of policy-making authority are consistent with Congress' intent.

Keywords: Delegation, Chevron, Separation of Powers, Congressional Oversight, Gorsuch, Gutierrez-Brizuela, Statutory Interpretation, SOPRA, Separation of Powers Restoration Act