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NCLA seeks to arm those who think about the law – scholars, judges, and clerks – with the knowledge and tools they need to serve as pivotal constitutional bulwarks against the unchecked power of the Administrative State.

Why Judges Should Not Defer!

Judicial deference is a doctrine of judicial review that purports to require Article III judges to violate their oath of impartiality to yield to an administrative agency’s interpretation of either a Congressional statute or agency regulation. Since the Supreme Court first created the doctrine of Chevron deference in 1984, courts have fabricated a dozen or so different varieties of deference and deference-related doctrines, each one seemingly more problematic than the last. NCLA staunchly opposes this dirty dozen of unconstitutional thumbs on the scale of justice, and we urge Article III judges to ask themselves whether it is consistent with their oath of office to deprive Americans of their day in court before an impartial arbiter.

If Chevron stands for anything, it is “the principle that the courts will accept an agency’s reasonable interpretation of the ambiguous terms of a statute that the agency administers.”

Mead/Skidmore deference is a lesser degree of deference applied to agency interpretations “such as those in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines.” Christensen v. Harris County, 529 U.S. 576 (2000).

So-called “super-deference” requires courts to be at their most deferential when reviewing agencies’ scientific and technical determinations.

Griggs v. Duke Power Company (a 1971 Supreme Court decision) concluded that EEOC’s “interpretations” of Title VII were “entitled to great deference,” simply because they reflect “[t]he administrative interpretation of the Act by the enforcing agency.”

In reviewing the constitutionality of a statute, courts must accord substantial deference to the predictive judgments of Congress.

A court must defer to an agency’s own interpretation of that agency’s past adjudications.

Chevron applies to the terms of a statute, but, under Kisor/Auer/Seminole Rock, a federal court must defer to an agency’s interpretation of an ambiguous regulation that the agency has promulgated.

According to this 2013 Supreme Court case, courts should defer to agencies when reviewing agency determinations about the extent of their own powers.

In the sentencing phase of a criminal case, courts must defer to the interpretive notes contained in the commentary to the U.S. Sentencing Guidelines.

According to this doctrine, a court must defer to fact-finding by administrative adjudicatory proceedings.

Courts must defer to the agency’s published interpretation that conflicts with a prior court interpretation, even if that means reversing its own prior precedent in order to conform to the agency’s rule.

A variety of cases from the 1970s or earlier with the tests that precede and anticipate Chevron deference.

Chevron Bias

Phillip Hamburger

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.
Judicial Deference

Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges—questions concerning independent judgment and systemic bias that have not yet been adequately asked, let alone answered.

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The Rise and Rise of the Administrative State

Gary Lawson

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Scope of Authority / Nondelegation

The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.

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Why the Modern Administrative State Is Inconsistent With the Rule of Law

Richard Epstein

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Scope of Authority / Nondelegation

What constraints, if any, does the elusive but vital conception of the rule of law place on the interpretation of the Constitution, particularly in its relationship to the rise of the administrative
state?

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Our Focus Areas

Judicial Deference

Deference doctrines require judges to defer to an administrative agency’s fact finding, or its interpretation of statutes and regulations. Thus, judges surrender their independent judgment and, where the government is a party, must exhibit systematic bias in the government’s favor, which denies due process of law to the other litigant.

Due Process of Law

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Scope of Authority/ Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Free Speech

The Administrative State tries to squelch speech, especially through licensing, speech bans, and speech mandates. Licensing requires one to get the government’s permission prior to speaking. Nothing was more clearly forbidden by the First Amendment than prior restraints on speech, but such controls are now commonplace.

Unreasonable Searches

The Fourth Amendment forbids warrantless searches and seizures of information, yet the Administrative State violates this right to privacy through administrative subpoenas and warrants, automated information collection devices, civil investigative demands, and “voluntary” requests for information.

Guidance Abuse

Agency guidance is easier to promulgate than formal rules and regulations, so agencies prefer to issue it. Such “guidance” supplies relatively informal indications of how an agency interprets rules and statutes. Although guidance is not permitted to bind Americans (unlike laws made by elected legislators), agencies treat guidance as binding and courts often fail to stop them.

Conditions on Spending

Administrative agencies use unconstitutional conditions on spending to regulate the conduct of grantees. Rather than rule through law, the government simply purchases submission.

Free Speech Cases