Philip Hamburger (Columbia University – Law School) has posted Deference to Administrative Interpretation: The Unasked Questions on SSRN. Here is the abstract:
The key questions about judicial deference to administrative interpretation have not yet been asked, let alone answered. Under cases such as Mead, Chevron, and Arlington, judges must “respect” or otherwise “defer” to agency interpretations of ambiguous authorizing statutes. The Supreme Court and myriad scholars justify this deference by asking whether an agency has statutory authorization to interpret. There remain, however, two constitutional questions about the role of the judges.
First, under the Constitution, the judges have an office or duty to exercise their own independent judgment about what the law is, and it therefore must be asked how the judges can defer to the interpretation or judgment of executive or other agencies about what the law is. In respecting or otherwise deferring to agency judgments, the judges are abandoning their duty–indeed, their very office–of independent judgment.
Second, under the Fifth Amendment, parties have a right to the due process of law, and it therefore must be asked whether judicial deference is really systematic bias for one party and against others. The judges respect or otherwise defer to agencies’ interpretations of statutes, and they thereby typically are favoring the interpretation or legal position of one of the parties in their cases. They thus are engaging in systematic bias in favor of the government and against other parties in violation of the due process of law.
Even where agencies have authorization to interpret for their purposes, this statutory authority cannot put to rest the constitutional questions about the judges. The statutory authority for agencies cannot excuse the judges from their constitutional duty to exercise their own independent judgment about the law; nor can it brush aside the constitutional right of parties not to be subjected to systematic bias.
Posted at 6:19 AM