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Judicial Restraint Cannot Restrain the Administrative State

The Huffington Post The Huffington Post 24/03/2016 Evan Bernick

The nomination of Judge Merrick Garland to the Supreme Court has stimulated a number of important debates about the future of the Court and about judicial philosophy. Among those debates: Just what does it mean for a judge to be "restrained," and is "judicial restraint" a virtue or a vice? In a recent Washington Post column, George Will contended that Judge Garland's willingness to defer to assertions of regulatory power by executive agencies administering federal statutes evinces a commitment to "judicial restraint." Ed Whelan (at Bench Memos) and Greg Weiner (at the Library of Law & Liberty) have responded critically, arguing that Will's failure to distinguish between deference to executive agencies and deference to Congress reveals a misunderstanding of judicial restraint. According to Whelan and Weiner, judicial restraint is indeed a virtue, but it does not counsel in favor of deference to the executive branch in this context. Deference to the executive and deference to the legislative branches of government are (in Weiner's words) "neither legally nor politically equivalent." Congress is a deliberative body; the executive is merely supposed to "execute that on which the legislature has already deliberated." Judicial deference to Congress follows from the legislature's deliberative nature; judicial deference to the executive "elevates dictation above deliberation" and results in the "mere denigration of judges." Thus, a properly restrained judge will defer to congressional deliberations; he or she will not defer to executive fiat.
Whelan and Weiner are right to criticize judicial deference to executive agencies. But their critique is incomplete. Judicial deference to Congress is no less constitutionally problematic than deference to executive agencies. Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise. It is thus unsurprising that judicial deference to the legislative branch has helped give rise to what Justice Clarence Thomas has described as an "administrative apparatus that finds no comfortable home in our constitutional structure."
It is often--and accurately--said that the Constitution establishes an independent judiciary. The nature of that independence is not often explained. As Professor Phillip Hamburger has shown, judicial independence consists not only in life tenure and fixed salaries but independent judgment. Independent judgment entails--among other things--impartiality. Those who wield the "[t]he judicial Power" have a constitutional responsibility to decide cases and controversies impartially, in accordance with "the supreme Law of the Land."
Systematic deference to government officials' supposedly careful deliberations is incompatible with the judicial duty of impartiality. It is thus a breach of the trust that We the People place in the judiciary to ensure that our servants in the legislative and executive branches adhere to constitutional limits on government power. It sees judges abdicating their Article III duties; it also deprives individuals of the "due process of law" guaranteed by the Fifth and Fourteenth Amendments, both of which are properly understood to incorporate a duty of judicial impartiality. (As the Supreme Court has repeatedly recognized.)
Such judicial deference has facilitated the emergence of an administrative state that cannot plausibly be squared with Article I's express statement that "[a]ll legislative Powers herein granted shall be vested in a Congress" (emphasis added) and its careful delineation of a limited set of legislative powers. Consider the development of the judicial doctrine of "Chevron deference," named for the 1984 decision in which it was articulated. In Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984), the Court held that courts should defer to interpretations of congressional statutes when agencies write and enforce regulations pursuant to the statutes unless those interpretations are "unreasonable"--regulations that have the force of law. As Weiner notes, Chevron has contributed to a status quo in which executive agencies, as a matter of course, legislate, adjudicate, and execute the law--an accumulation of power that James Madison once described as "the very definition of tyranny." But Chevron deference was championed by none other than Justice Antonin Scalia on the grounds that in deferring to administrative agencies' interpretations of ambiguous federal laws, judges are actually deferring to Congress, which can be presumed to have "inten[ded] to confer discretion upon the agenc[ies]." Thus did Justice Scalia distinguish between deference to agency's interpretations of their own regulations and deference to agency's interpretations of congressional statutes, ultimately rejecting the former but arguably doing more than any justice to entrench the latter. (To his credit, he eventually expressed some misgivings about Chevron as well, having seen what it has wrought.) That is to say, Chevron is a product of the judicial restraint that Whelan and Weiner defend, and it was defended on the basis of the very distinction that they draw.
Advocates of constitutionally limited government must therefore reject judicial restraint in favor of consistent judicial engagement. Judges should never defer to the mere will of government officials when those officials' actions are challenged in court. Every exercise in statutory interpretation should be wholly focused on ascertaining the meaning of the law that Congress actually enacted, not what legislators currently believe the law means or wish it meant. Agency's interpretations of their own rules should likewise receive no deference. In constitutional cases, Congress, which has no power that it does not draw from the Constitution, must be made to affirmatively justify its actions with reference to an express grant of power in Article I. Congress must demonstrate the constitutionality of its means and ends with reliable evidence.
In the final analysis, judges cannot be "restrained" without unconstitutionally abdicating their duty to judge. It is in substantial part because of judicial abdication that we are ruled by federal fiat in wide areas of life. Whelan and Weiner rightly reject rule by fiat, but their proposed solution is, in fact, part of the problem. Judicial restraint, even as carefully defined by Whelan and Weiner, is no virtue.

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