Let Judges Judge

Apr 05 2019

Congress passes laws, the executive branch enforces laws, and the courts interpret the law. That is how we were all taught the United States government was supposed to work in civics class.

Unfortunately, the progressive movement has so warped Washington’s understanding of the Constitution that some federal bureaucrats think they have the authority to make law, enforce law, and interpret it.

Witness Joe Pizarchik, President Obama’s director of Surface Mining Reclamation and Enforcement, who ran to Politico after Congress passed a law undoing his Stream Protection Rule, a regulation that would have killed thousands of jobs in coal mining and surrounding industries.

Now when an executive branch agency, like the Interior Department’s Office of Surface Mining Reclamation and Enforcement, writes a new regulation, they do so only because Congress specifically empowered them to do so by an underlying delegation of power, in this case the Surface Mining Control and Reclamation Act of 1977. There is nothing in the Constitution that grants the executive branch the power to regulate the coal industry.

And what power Congress grants the executive branch, it can also take away. So, after President Trump was sworn into office, Congress passed a resolution pursuant to the Congressional Review Act undoing the regulation Pizarchik had created.

Incensed that Congress would dare undo what he had done, Pizarchik told Politico, “I believe there’s a good chance that… a court will overturn Congress’ actions here as unconstitutional usurpation of executive branch powers.”

A “usurpation of executive branch powers”? What powers?!?! The Office of Surface Mining Reclamation and Enforcement is mentioned nowhere in the Constitution and only has whatever powers Congress grants it, and even then Congress is free to take back those powers whenever it pleases.

Unfortunately, the executive branch is not the only one guilty of empowering entitled unelected job-killing bureaucrats like Pizarchik. The Supreme Court’s 1985 Chevron v NRDC decision also helped empower federal bureaucrats at the expense of the other branches. Under Chevron, federal judges must accept a federal agency’s interpretation of a statute when deciding whether or not an agency action exceeded the authority Congress intended to grant that federal agency.

Thanks to this case, with just a minimally clever legal theory, an executive agency can impose on the American people laws that the people’s elected representatives never actually passed. This is not what the Founders intended.

That is why I helped cosponsor the Separation of Powers Restoration Act last week, a bill that would allow judges to look at statutes governing federal agencies fresh, without deferring to the agency’s interpretation of the stature.

Chevron deference is hardly the only problem with our federal bureaucracy, nor is it the biggest. But it is one of the least defensible problems, with a clear and obvious fix.