We now live in a world of delegation.  It is often said that most of the rules that are enforced at the federal level have not been enacted by Congress, but by administrative agencies.  It was not always that way. 

The binding rules in the United States used to be enacted or recognized by other entities.  The statutory rules would be enacted by Congress and they would be interpreted by the courts.  Common law rules would be recognized by the federal courts.  And, of course, more areas were addressed solely at the state level.  It is true that agencies sometimes exercised delegated authority, but it was a much more limited affair.

This transformation to a world of delegation – to the Administrative State – has been quite astounding.  It is worthwhile pausing to consider some of the ways it happened.  There are two principal types of delegation that have occasioned this transformation: delegation of policymaking and delegation of legal interpretation.

The delegation of policymaking involves a congressional decision to authorize an agency to exercise policymaking discretion.  For example, many statutes that authorize agencies to take actions that are in the public interest are best interpreted as delegating such discretion to the agency.  The responsibility for this delegation largely lies with Congress, which decided to pass the statute.

The lead in this type of delegation has been taken by the Democrats – during the New Deal, the Great Society, and the Obama Administration – but the Republicans have certainly employed this tactic as well.  Additional responsibility for this type of delegation must lie with the Supreme Court, which after striking down a few delegations in 1935, has not struck down any, with the one possible exception of the Line Item Veto Act – the one delegation that would reduce the size of government.

The second type of delegation – the delegation of legal interpretation – has occurred differently.  This type of delegation – which allows the agencies deference as to their interpretation of statutes or legislative regulations – occurred mainly through the judicial doctrines of Chevron deference and Seminole Rock deference.  Unlike the delegation of discretion, which clearly came from Congress, this type of delegation is principally the responsibility of the courts.  And here the Republicans have had at least equal, if not more, responsibility than the Democrats.

Congressional statutes are best read as not generally conferring deference on the agencies.  The Administrative Procedure Act (APA) does not appear to confer deference, but to require the courts to decide all legal questions. While specific statutes could explicitly or perhaps even implicitly confer deference on the agencies, this is nothing like the Chevron regime, which presumes that all ambiguities and gaps in the statute are delegated to the agency.

In my view, the great majority of cases where the courts currently grant Chevron deference would not involve any discretion under an approach that honestly asked whether Congress had actually conveyed such deference.  While there was some deference found by courts in the first generation or two under the APA, it was generally limited to smaller issues (such as mixed questions of law and fact rather than to pure questions of law).  It was the Republican judges in the middle 1980s that were the most important cause of the adoption of Chevron.

Chevron and Seminole Rock (which extends deference to agency interpretation of regulations) were disasters.  The Congress had already delegated policymaking discretion, but at least that discretion was limited by an independent decision on the law from the courts.  After Chevron and Seminole Rock, the agency’s delegated authority was greatly expanded, since the agency could now enjoy both types of delegation.

The moral of the story here is that dramatic changes like delegation are not simply the result of the actions of one government entity.  Such changes have to gain the approval (or at least acquiescence) of multiple parts of the government and often of both parties.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael Rappaport

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