Title: Who Will Regulate the Regulators? Administrative Agencies, the Separation of Powers, and Chevron Deference | The Heritage Foundation
Headings: Who Will Regulate the Regulators? Administrative Agencies, the Separation of Powers, and Chevron Deference
Who Will Regulate the Regulators? Administrative Agencies, the Separation of Powers, and Chevron Deference
An Unaccountable Fourth Branch of Government
Judicial Deference to Agencies
Problems with Chevron Deference
Restoring the Balance
Authors

Content: 2] The Founders sought to prevent such tyranny—thereby safeguarding Americans’ individual liberties—by dividing the powers of the federal government among three coordinate branches. The modern administrative state, however, blurs the separation of powers and the system of checks and balances and has become an unaccountable fourth branch of government. The Progressive Era led to the creation and strengthening of agencies like the Federal Trade Commission and the Food and Drug Administration; the New Deal brought the Securities and Exchange Commission, the National Labor Relations Board, and the Federal Communications Commission; the 1970s heralded the Environmental Protection Agency; and more recently has come the Consumer Financial Protection Bureau. [ 3] The result is that administrative agencies today “pok [e] into every nook and cranny of daily life.” [ 4]
As described by Supreme Court Justice Stephen Breyer, agencies “come in different shapes and sizes, and they employ millions of government officials and ordinary workers” to deal with issues that include “taxes, welfare, Social Security, medicine, pharmaceutical drugs, education, highways, railroads, electricity, natural gas, stocks and bonds, banking, medical care, public health, safety, the environment, fair employment practices, consumer protection, and much else….” [ 5] The idea may have been to put impartial, scientific experts in charge of highly technical areas of regulation, [6] but today, as Justice Breyer explains: Political appointees, often not experts, are normally responsible for managing agencies and determining policy.