James Lankford “It is emphatically the province and duty of the Judicial Department to say what the law is” declared Chief Justice John Marshall in the landmark case of Marbury v. Madison. For centuries this statement has stood as one of the most famous in American jurisprudence. It was a declaration of the role and duty of the judicial branch within our constitutional structure.
The Constitution provides for three separate and distinct branches of government, each having a “check” on the other, thus allowing, as James Madison wrote, for ambition to “counteract ambition.”
As our government has grown and the issues we face have become more complex, the lines separating the branches have blurred. While it used to be that Americans were subject to federal laws passed by Congress, today the majority of rules that govern their daily lives have been promulgated, interpreted, and administered by federal agencies in the executive branch. So much for “all legislative power shall reside in Congress.”
...The courts should adhere to the natural reading of the law and require government agencies to do the same. In 2013, in City of Arlington v. FCC, the Supreme Court cautioned that “judges ought to refrain from substituting their own interstitial lawmaking” for that of an agency. Yet this is exactly what was done by the Court in the recent King v. Burwell case regarding Obamacare.
...Prior to Burwell, precedent for the Court substituting another opinion for that of Congress was set by the Supreme Court in Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (1984), and Auer v. Robbins (1997). Because of these decisions, federal courts have increasingly deferred to agency interpretation, both of their governing statutes and their own regulations.
On its face, this may seem like an understandable position for a court to take. Agencies, after all, are experts in a particular field and have technical expertise that courts often find difficult to scrutinize. In practice, however, excessive deference has fundamentally changed how federal agencies regulate and how Congress writes law — this is a tragic deviance from the constitutional structure of our three branches of government. Instead of simply carrying out the directives of Congress, agencies now look for ambiguities in the law knowing full well that courts will defer to their interpretation.
...When agencies choose to expand laws written by Congress to pursue their own agenda, knowing that the courts will likely not check their power, judicial deference becomes little more than a blank check for agencies to exercise legislative and judicial authority. Such deference diminishes “We the People” to “They the Regulators.” It also makes the Constitution irrelevant and the voice of the people affected by the regulations ignored.
Relieving the extraordinary regulatory burden on the American people begins by fixing this constitutional imbalance by reconsidering the proper degree of deference that courts should afford agency decisions. It also requires Congress to clearly state in each statute that it is their intent that agencies and the courts not expand the text beyond its natural reading. Finally, the courts have an obligation to restrain — in a manner prescribed by Congress — the agencies from writing new law from their desk. Lawmaking may be slow, but we have checks and balances for a reason.
Anyone who's dealt with the federal land management agencies and their reg's should be familiar with this judicial deference to agency interpretation. Lankford does a wonderful in summarizing the harm this has caused. Industry and individuals should request that all existing and future legislation contain the language suggested in his column.
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