High court may be on verge of reining in bureaucrats
Conservatives may not need to wait long for the Supreme Court to narrow the executive branch’s power to fill in gaps in laws passed by Congress. Legal eagles among conservatives were only semidisappointed last week when the high court in Gundy v. United States declined there and then to rein in Congress’ habit of delegating major decision-making power to the executive branch. They still have high hopes that the court this week will limit the ability of executive agencies to run too far afield in exercising discretionary authority. These legal disputes are important. They involve two foundations of American government — the ability of voters to control their government and the ability of citizens to understand the rules governing their behavior while counting on reasonable stability in those rules. Very broadly speaking, three Supreme Court doctrines determine whether executive branch officials have too much discretionary power. The first, involving something called the “non-delegation doctrine,” would, if applied strictly, set limits on how much Congress can delegate its own authority to executive officials. Hillsdale professor Adam Carrington explained it well here last week in writing that conservatives who want that doctrine vigorously enforced are hopeful despite technically losing last week’s Gundy decision. In short, he explained, if the right future case comes along, five of the court’s nine justices are expected to make Congress actually do its job rather than delegating it elsewhere.
The second doctrine, known as “Chevron deference,” allows agencies broad leeway in interpreting congressional intent. It isn’t at issue in any major case this month. The third, known as “Auer deference,” allows agencies leeway in interpreting their own regulations. That’s what is at issue in the case of Kisor v. Wilkie, expected to be decided later this week. The case involves a decision by the Department of Veterans Affairs to deny treatment for post-traumatic stress disorder to Vietnam War Marine veteran James Kisor. Kisor believes the VA is misapplying the regulations pertaining to his case, and he wants the justices to reject Auer deference and thus review his claim. Granted, the exact legal considerations at play in the Chevron, Auer, and non-delegation doctrines are somewhat different from each other. Thematically, though, all three involve the boundaries of the Constitution’s separation and intermingling of powers. How much leeway does the Constitution allow (or not allow) the executive branch not just to enforce policy as dictated by duly passed laws but to actually perform legislative-like functions of proclaiming policy on its own authority?
In all three situations, many conservative legal leaders believe executive authority should be limited — or, in cases involving non-delegation issues, that Congress should be forced to take more responsibility for the clarity and meaning of its own work, rather than pawn off its duties to the executive. That’s why the hints from the high court’s conservative “bloc” in Gundy give hope to conservative court observers for Kisor: It stands to reason that justices willing to insist in an impassioned dissent that Congress not delegate lawmaking power to the executive will also insist that executive rulemaking remain within stricter limits.
This is important. American voters control who goes to Congress and can adjudge Congress’ work in biennial elections. But voters have next to no say over the oft-nameless bureaucrats who write and enforce regulations. The conservative preference for less administrative discretion helps ensure accountability to the public. Likewise, if agencies can repeatedly reinterpret or rewrite laws and regulations, citizens will feel subject to arbitrary processes, without recourse to relief. If the high court majority in Kisor does indeed limit Auer deference, accountability and citizens’ trust in their government will be blessedly enhanced.
https://www.washingtonexaminer.com/opinion/high-court-may-be-on-verge-of-reining-in-bureaucrats
Gundy v. United States
https://casetext.com/case/gundy-v-united-states-3
Gundy v. US was a chance to tell Congress they can't regift legislative power
https://www.washingtonexaminer.com/opinion/gundy-v-us-was-a-chance-to-tell-congress-they-cant-regift-legislative-power
Kisor v. Wilkie
https://www.scotusblog.com/case-files/cases/kisor-v-wilkie/