by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Supreme Court, Thomas grumbled in the first of a series of 2015 administrative state opinions, has “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”
For starters, the Constitution vests all legislative powers in Congress, which means that they cannot be delegated elsewhere. As the Framers’ tutelary philosopher John Locke wrote, the legislature can make laws but it cannot make legislators—which is what Congress does when it invests bureaucrats with the power to make rules that bind citizens. Nor can the courts delegate judicial power to bureaucrats, as the Supreme Court began doing in a World War II case when it ruled that courts must defer to agencies’ interpretations of their own regulations. The Court’s rationale was that agencies have technical expertise that judges lack. That’s not the relevant issue, Thomas contends: “The proper question faced by courts in interpreting a regulation is not what the best policy choice might be, but what the regulation means.” And who better to interpret the meaning of words, Thomas asks in Perez v. Mortgage Bankers Association, than a judge?
Worsening this problem, Thomas argues in Michigan v. EPA, is the deference doctrine that the Court hatched in Chevron v. Natural Resources Defense Council in 1984. This doctrine requires courts to assume that Congress intended that any ambiguity it left in a statute under which an agency operates should be resolved by the agency, not by the courts. Consequently, Thomas exasperatedly observes, not only do we have bureaucrats making rules like a legislature and interpreting them like a judge, but also the interpretations amount to a further lawmaking power, with no checks or balances whatever.