Examining the Proper Role of Judicial Review in the Regulatory Process

April 28, 2015 • Testimony

When it applies, Chevron is a powerful weapon in an agency’s regulatory arsenal. Congressional delegations to agencies are often ambiguous — expressing a mood rather than a message. By design or default, Congress often fails to speak to the precise question before an agency. In the absence of such an answer, an agency’s interpretation has the full force and effect of law, unless it exceeds the bounds of the permissible. It would be a bit much to describe the result as “the very definition of tyranny,” but the danger posed by the growing power of the administrative state cannot be dismissed.
City of Arlington v. Federal Communications Commission, 133 S. Ct. 1863, 1879 (2013) (Roberts, C.J., dissenting)

My name is Andrew Grossman. I am an Adjunct Scholar at the Cato Institute and a litigator in the Washington, D.C., office of Baker & Hostetler LLP. The views I express in this testimony are my own and should not be construed as representing those of the Cato Institute, my law firm, or its clients. This hearing could not be more timely or its subject matter more important. We may be at the cusp of a period of rapid transition in the law governing the administrative state. As the Supreme Court works through the implications and consequences of original meaning, it must consider the place of the administrative state in our constitutional system. Recent terms have seen the justices increasingly question the now‐​expansive role of nontraditional actors in making, enforcing, and adjudicating law and the judiciary’s role in checking them. More and more cases are grappling with fundamental questions of separation of powers and the rights of citizens against the state. And it is a sign of the times that one of the most discussed books of the past year — at least among those who pay attention to these things — was Philip Hamburger’s Is Administrative Law Unlawful?, which may have set the speed record for earning a citation in a Supreme Court opinion.

Interest in these issues is not confined to the legal profession. The use, abuse, and limits of executive power have been overriding issues of public concern in the current and previous administration. Many members of the public, as well as members of this body, question the legitimacy of numerous actions taken by the current administration, from circumventing Congress to “enact” immigration reform, to circumventing Congress to regulate greenhouse gas emissions and ban new coal‐​fired power plants, to circumventing Congress to “rewrite” problematic provisions of the Patient Protection and Affordable Care Act.

There may be a pattern here.

The Constitution provides for separation of powers to protect individual liberty1 and for checks and balances to confine each branch of government to its proper place and thereby enforce the separation of powers. Judicial review is one of the most important checks on executive action. But it is also crucial for safeguarding the interests of the Legislative Branch, because it is the judiciary that measures the execution of the law against what Congress has actually legislated. It is therefore appropriate that this body should consider the effectiveness of judicial review and opportunities for improvement and reform.

It is also pragmatic. Many policies that we associate with the judicial process — including doctrines providing deference to administrative agencies — are in fact subject to legislative control. My testimony today addresses three: judicial deference to agencies’ interpretations of their own rules (also known as Seminole Rock or Auer deference); judicial deference to agencies statutory interpretations (also known as Chevron deference); and the APA’s exemption of interpretative rules — which often serve to impose legal obligations on the public — from ordinary rulemaking procedures. Each presents the potential opportunity for reforms that make our administrative state more accountable to the public, to Congress, and to the law.

1See Bond v. United States, 131 S. Ct. 2355, 2365 (2011).

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