November 24, 2020
By Timothy Sandefur
Americans have become increasingly conscious of the power of federal and state bureaucracies—unelected agencies that violate the constitutional principles of separation of powers by combining the legislative, executive, and judicial authority. They write the rules, investigate suspected violations of the rules, and prosecute those violations in their own administrative hearings—hearings where the rules of evidence and procedure do not apply. Often called “the administrative state,” these combined bureaucracies aren’t contemplated in the U.S. Constitution, yet they are responsible for most of the “laws” under which you live your life.
In his book Judicial Fortitude, Peter Wallison of the American Enterprise Institute argues that Americans need courts to restore constitutional discipline—and doing so requires judges to reclaim the power the Constitution gives to them, of interpreting and applying the law. That’s a power that the courts themselves largely chose to abandon in a series of cases that established the principle of “deference”—cases such as Chevron v. Natural Resources Defense Council (1984) that gave bureaucrats broad power to determine the breadth of their own powers. Fortunately, some state courts have indicated a willingness to reconsider the idea of “deference” and reassert their own responsibility to judge legal questions. In Wisconsin, Mississippi, and elsewhere, judges have declared that whatever powers bureaucratic agencies may have, they don’t have power to write their own ticket. But whether federal judges will do likewise remains to be seen.
In a recent teleforum, my colleague Jon Riches and I sat down with Wallison to talk about what progress has been made in recent years and what still remains to be accomplished. You can watch that above.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.