We complain here at JS that judicial deference to agency interpretive discretion under the jurisprudence of Chevron v Natural Resources Defense Council (1984) gives agencies waaaaaayyyy too much power, actually making them a legislative player.
Last year I got all excited when Phillip Hamburger, Professor of Law at Columbia, agreed with us that administrative law use of Chevron to allow agency hegemony was a bad deal in a book titled Is Administrative Law Unlawful?. Hamburger said it is because it violates the proper delineation of legislative power under Article I of the US Constitution. It gives an article II agency article I powers. That violates the constitutional seperation of powers intent.
Now Hamburger (I think too optimistically) thinks the SCOTUS opinion in Michigan v EPA and also King V Burwell are signs that the SCOTUS will diminish Chevron as controlling on agency activities and rule making. I sure hope Hamburger’s right but the judicial restraint theory of Scalia works against us.
Judges are instinctively oligarchs–they like big gov. Big gov is powerful and dominated by executive agency activity–autocratic if you will.
Robert Nagel, Prof of Con Law at U of Colorado articulated the problem very well a long time ago–judges are too much into exerting themselves to impose their preferences and finding ways to justify their actions and lack of restraint. Right now we need some lack of restraint to stop EPA and other exec agency overreach.
The Nagel essay on Judges are Lawyers, they can’t help themselves, and want to be in charge.
I treat the matter here, borrowing from Nagel and Judge William Posner: