by Mitch Kokai
Senior Political Analyst, John Locke Foundation
… [T]he judiciary has failed in its responsibility to ensure that the laws binding on the American people will be made in the future by Congress and not by unelected officials in the federal government’s administrative agencies — often called the administrative state. The confirmation of Judge Brett Kavanaugh for the Supreme Court is likely to have a major effect on the Court’s future direction on this issue.
The Framers designed a constitution that would protect Americans’ liberties by separating the government’s powers: a legislative branch (Congress) to make the laws; an executive, controlled by the president, to carry them out; and a judiciary to interpret their scope. The judiciary’s role is particularly important. In Federalist No. 78, Alexander Hamilton called the judiciary the “guardian of the Constitution” because its task was to make sure that the elected branches stayed within their assigned responsibilities, but he noted that the judiciary was given lifetime appointments because it would need “fortitude” to stand up to the elected branches.
The original design worked well for more than 150 years. But during the New Deal era, with the approval of the judiciary, Congress began creating and empowering many new administrative agencies to regulate or otherwise control major areas of the US economy. This trend culminated in a 1984 Supreme Court decision, Chevron v. NRDC, in which the Court directed lower courts to defer to administrative agencies’ interpretations of their authority if the interpretations were “reasonable.” This enabled administrative agencies to go beyond the actual words of their statutory authority, to substantially expand the scope of their rulemaking.