By Jon Dougherty
POTUS Donald Trump stormed into Washington, D.C., pledging to “drain the swamp” and return power to the people, but he’s run into one barrier after another.
Besides opposition from Democrats, #NeverTrump Republicans, and federal courts, the president has also gotten pushback from his own Executive Branch agencies which are filled with unelected bureaucrats empowered to write rules and regulations with the force of law, thanks to Congress.
For decades, the Legislative Branch has passed laws so broad they are left to the various agencies and bureaucracies to figure out what they mean and how to go about enforcing their provisions. That is an enormous amount of power that the federal bureaucracy — often called a virtual ‘fourth branch’ of government — gets to wield.
The Supreme Court has contributed to the abuses of power. As The Daily Signal‘s legal fellow Elizabeth Slattery notes:
Compounding this problem, the Supreme Court has created doctrines instructing courts to defer to the reasonable interpretations of administrative agency officials in the face of ambiguous statutory text or regulations. Specifically, the court’s decisions in Bowles v. Seminole Rock & Sand Co. (1945) and Auer v. Robbins (1997) require judges to defer to an agency’s interpretation of its own regulations if they are ambiguous, as long as that interpretation is not plainly erroneous or inconsistent with the regulations.
This turns on its head the court’s foundational declaration in Marbury v. Madison (1803) that it is “emphatically the province and duty of the judicial department to say what the law is.” Instead, Auer/Seminole Rock deference ensures that federal bureaucrats, rather than judges, say what the law is.
Now, however, the high court may be able to redeem itself while returning constitutional balance to our system of lawmaking.
James Kisor, a retired Marine who served in the Vietnam War and suffers from post-traumatic stress disorder, applied for disability benefits from the Veterans Administration in 1983 but was rejected. He found new documents the VA did not consider then and sought to have his case reexamined in 2006.
The VA granted his claim but ruled it was not liable to make it retroactive to 1983. Kisor appealed to the Court of Appeals for Veterans Claims, noting that by his interpretation of agency rules he was eligible for retroactive reimbursement.
However, though the panel said both Kisor and the VA made reasonable determinations it was obligated to rule on behalf of the government agency because judges examining the case were bound by the Auer/Seminole Rock doctrine.
Justices questioned lawyers for Kisor and the government, namely Solicitor General Noel Francisco on various aspects of the doctrine, congressional intent behind ambiguously written laws, and how judges should and should not factor into what is ultimately decided and, importantly, which side of an argument to take — an individual’s side or always the federal agency’s side.
Paul Hughes, Kisor’s lawyer, argued that the Auer/Seminole Rock deference is a violation of the constitutional separation of powers and gives an unfair advantage to one party (the government) in litigation.
However, he also “identified another problem—it cannot be squared with the Administrative Procedure Act, the federal law governing agency rulemaking,” Slattery writes.
This law makes clear that judges (not federal bureaucrats) “shall decide all relevant questions of law” and “determine the meaning or applicability of the terms of an agency action.” It also requires agencies to go through a public “notice and comment” period before issuing new or revised rules.
This is something agencies can circumvent through creative “interpretation” of rules, but Hughes pointed out that notice and comment is “not just some speed bump along the administrative process” but a process that “matter[s] a great deal.”
After justices questioned Francisco, Hughes returned to the podium for a rebuttal.
“Agencies have a very substantial role to play in policymaking, but Congress made the judgment that the way that that is done in a democratic way, accountable to the [people] is through notice and comment rulemaking, such that the regulated public can provide their views,” he said.
Slattery noted that several of the justices appeared skeptical that Auer/Seminole Rock deference should remain in place, but also showed concern for what would replace it. Still, she added, “it’s time for the court to correct its mistake and make clear that judges—not agency officials—say what the law is.”
- Follow Jon Dougherty on Twitter at @JonDougherty10
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