No longer can a federal agency be its own judge, interpreter of the law, and jury.
No longer can a federal agency be its own judge, interpreter of the law, and jury.
I magine that you have run afoul of some federal agency’s rule that makes no sense to you. Then consider what it would be like if you could find no basis for the rule in the laws passed by Congress. Then imagine that the agency decided to try you in its own court under its own judge — and then if the agency didn’t like its judge’s ruling it could appeal to itself! Does that sound like justice to you? Until last week, however, that was the reality for too many Americans caught in the bureaucratic web. Thankfully, in a one-two punch of decisions, the Supreme Court restored due process and the rule of law.
As everyone knows, Congress has a habit of passing ambiguous laws. In the 1980s, the Supreme Court tried to solve this problem by creating something called “Chevron deference.” That said that where an executive agency has rulemaking power devolved to it by Congress, courts should grant deference to the agency’s reasonable interpretation of the law.
There were two main problems with this. First, it encouraged agencies to draft expansive interpretations, adding to their own power. Secondly, it abnegated the judiciary’s fundamental responsibility, in the words of Chief Justice John Marshall, “to say what the law is.”
In a pair of cases it combined into one, the Supreme Court finally overturned this doctrine. Writing for the Court, the chief justice said the doctrine was incompatible with the nation’s governing statute for regulatory law, the Administrative Procedure Act, which followed Marshall in ruling that courts “shall decide all relevant questions of law, interpret constitutional and statutory provisions.” The cases in question involved fishermen who the fisheries agencies said should pay for agency monitors on their boats when the law was silent on the matter. Courts had applied Chevron deference, siding with the agency. That doctrine is now gone, and the courts have to decide what the law says.
In a separate decision one day earlier, the Court considered whether it was okay for the Securities and Exchange Commission to try someone for fraud in its own court, before its own judge, with its own appeals process. The Court found that such civil cases must be heard before a jury, as prescribed by the Seventh Amendment.
Taken together, these cases represent a huge victory for procedural justice. No longer can an agency be its own judge, interpreter of the law, and jury. The Court has restored the protection of the courts, a fundamental principle of the American rule of law, to the individual citizen, like the fishermen in the Chevron cases.
The cases also rebalance the three branches of government. Beforehand, the legislature empowered the executive, and the judiciary deferred to that, leading to what some have termed an “imperial presidency.” Now, as the Constitution intended, the legislature will pass a law, the executive will execute the law, and the courts will decide disputes over the law. No amount of pearl-clutching over the loss of power for the presidency and agencies can gainsay that this is an overdue restoration of due process.
The three branches will have to adjust to this new world. Congress will have to be much more specific and less sloppy when it passes a law (perhaps no more 2,000-page laws passed in a hurry without scrutiny will be a good start). Agencies will have to be much more precise in their execution of the laws and give up their power grabs.
Courts, in turn, will have to develop expertise in laws they have allowed the executive to interpret and enforce. A first step might be, as my colleagues Dan Greenberg and Devin Watkins suggest, for Congress to fund a new system of federal magistrates to take over the duties of current administrative-law courts like the SEC’s.
Make no mistake, last week the Supreme Court fundamentally altered the way administrative law works in America, and we should all be grateful for that.