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: 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. And policy often reflects political, not simply “scientific” considerations. Agency decisions will also occasionally reflect “tunnel vision,” an agency’s supreme confidence in the importance of its own mission to the point where it leaves common sense aside…. [ 7]
In turn, Congress passes the buck to agencies, enacting “vast and vaguely worded legislation … grant [ing] broad discretion to regulatory agencies.” [ 8] This allows Members of Congress to “claim credit for ‘doing something’ while evading blame for specific regulations.” [ 9] Though the nondelegation doctrine prohibits Congress from delegating legislative functions to the executive branch, the Supreme Court has allowed Congress to delegate regulatory authority to agencies as long as Congress specifies an “intelligible principle” to guide the agency in the exercise of its discretion. [