A Tale of Transformation: The Non-delegation Doctrine and Judicial Deference

The question of whether courts should defer interpretation of ambiguous provisions to agencies is often regarded as a technical question. In reality, far from being only a technicality, administrative deference has deeply political meaning and implications. This is true especially since polarization in Congress has made governing by executive power the norm and federal agencies have acquired increasing power. From a legal theory point of view, administrative deference finds its justification in the doctrine of separation of powers and the broader constitutionality of congressional delegation of powers to administrative agencies. As explained by Prof. Jon D. Michaels, ?the seminal Chevron and Mead cases can themselves be explained through the lens of an enduring, evolving separation of powers jurisprudence. Though not constitutional cases per se, both deal with constitutional actors ceding power to a rival.? This note engages with a review of the historical developments surrounding the doctrine of non-delegation and how it has morphed over time. It examines the theoretical link between the practice of judicial deference and the dormant non-delegation doctrine and argues that a change of jurisprudence around the non-delegation doctrine would also have an inevitable impact on the jurisprudence around judicial deference. If courts could strike regulations that they deem involve improperly delegated powers then they may be more keen on interpreting statutes and regulations that would otherwise be deferred to agencies? interpretation. Section 1 reconstructs the history of the non-delegation doctrine and in particular argues that it has evolved into a de-facto delegation doctrine. Section 2 discusses the seminal cases of Chevron and Mead and identifies the latter as the theoretical connecting ring between the delegation doctrine and judicial deference. Section 3 considers deference to an agency?s interpretation of its own ambiguous regulations and discusses the call for a revision of Auer. Section 4 continues the discussion on agencies interpretation of their own ambiguous regulations with particular reference to the Kisor case. Section 5 discusses the latest challenge to the dormant delegation doctrine in the Gundy case.