ATTENTION, Phillip Hamburger says I am wrong about Michigan v EPA–Chevron may be in danger

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:


3 responses to “ATTENTION, Phillip Hamburger says I am wrong about Michigan v EPA–Chevron may be in danger

  1. Hamburger’s 2014 treatise on the lawlessness of the admin state does not mention another consolidation of power: In violation of Blackstone’s on the Common Law, agencies routinely combine the role of the Sheriff, Jury, Judge and Executioner. Ask any lawyer. Can a Sheriff simultaneously act as a Judge? No! will be the correct answer. Yet the admin state engages in this type of consolidation all of the time. I am reluctant to go too far afield, but the Communist Manifesto and the Koran also engage in this type of illegitimate consolidation of power.

    How do we take the Constitution out of the trash can and put it back on the top shelf? By simultaneously asserting Constitutional violations such as double jeopardy in thousands of administrative law proceedings and pushing for legislative reform that automatically disqualifies, but does not disbar, an administrative judge from future governmental service in any capacity in the event that two or more rubber-stamped decisions are overturned on constitutional grounds.

  2. If the Agencies are returned to the Congress, rather than residing in the Executive Branch, many of the problems would be solved without the need for judicial intervention. Of course, Congress doesn’t want this since it would then require their direct involvement and then people could better see and understand their votes. Instead, they seem to prefer oversight committees, which accomplish nothing except showing how much they care and are trying to help their constituents against an overbearing bureaucracy.

  3. The problem will only be solved when most federal agencies are defunded and gone.

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