Delegation and Its Discontents

DELEGATION AND ITS DISCONTENTS
JAMELLE C. SHARPE†
I. INTRODUCTION .................................................................................. 185

II. ATTACKS ON AGENCY POLICYMAKING ........................................... 190
A. Judicial Essentialism ................................................................. 191
B. Judicial Pragmatism .................................................................. 204
III. A CRITIQUE OF THE CRITIQUES ....................................................... 209
A. Judicial Essentialism and the Countermajoritarian Difficulty .. 210
B. Judicial Pragmatism and Congressional Oversight. ................. 218
IV. CONCLUSION ................................................................................... 225
I. INTRODUCTION
Every now and then, and especially recently, Members of Congress

have expressed their discontent with the power wielded by the
administrative state.1 They particularly lament the seemingly
unrestrained growth of administrative lawmaking, which they view as
substantively contrary to what their constituents need or prefer.2 Given
that these agencies are staffed by bureaucrats who are unelected by and
thus not directly accountable to the people, these discontented members
believe that we are facing a constitutional crisis. They fear that, if left
unchecked and unchallenged, the administrative state will eventually and
† Professor of Law, the University of Illinois College of Law. Thanks to Michael

Morley and Nicola Sharpe for valuable comments and conversations regarding the
substance of this Article. Thanks also to Stephanie Davidson, Heather Simmons, and
Alice Mazzesi for very helpful research assistance. All errors are mine alone.
1. See, e.g., Ryan Lovelace, Sen. Mike Lee: Americans Believe They Have Lost
Control of Their Government, WASH. EXAMINER (May 17, 2017, 10:17 AM) (reporting
Sen. Mike Lee’s (R-UT) statement that the administrative state’s “vast, unaccountable
morass of programs, agencies, and commissions are things that all tend to be captured by
the powerful and well-connected, and all dedicated to the regulation of the minutiae of
everyday life”); Lisa Lambert, Republicans Take Next Step in U.S. Deregulation with
Senate Bill, REUTERS (Apr. 26, 2017, 5:34 PM), https://www.reuters.com/article/us-usa-
congress-regulation-idUSKBN17S33P; George Will, The Constitution is Clear: Congress
Should Legislate, Not the Administrative State, NAT’L REV. (Nov. 29, 2015, 1:00 AM)
(quoting Sen. Ben Sass (R-NE), who stated that “[t]he growth of the administrative state .
. . is increasingly hollowing out the Article I branch, the legislature”).
2. See, e.g., Nick Gillespie, et al., Administrative State is THE Leading Threat to
Civil Liberties of our Era, REASON (Oct. 12, 2017), https://reason.com/reasontv
/2017/10/12/philip-hamburger-administrative-state (interviewing Professor Philip
Hamburger, who views the rise of the administrative state as connected to bureaucrats’
“disdain for governance by the unwashed masses”).
185
186 WAYNE LAW REVIEW [Vol. 64:185
certainly overwhelm the separation-of-powers safeguards established in

the Constitution, destroying the People’s freedom in the process. Nor are
these members of Congress alone in their delegation discontent. Supreme
Court Justices have sounded similar alarms about the separation-of-
powers threat posed by unchecked delegations to administrative
agencies.3 Like their congressional counterparts, these justices advocate
for a return to separation of powers first principles as they see them,
which would reverse a dangerously rapid expansion of administrative
lawmaking.
Of course, Congress itself is largely responsible for the magnitude of
lawmaking conducted by today’s administrative agencies. It abounds
with collective action problems; its bicameral structure,4 diffusion of
decision-making authority among 535 Members whose interest differ
from those of the body as a whole,5 inter- and intra-party conflicts,
Senate rules that permit obstruction by the minority party (or even by a
single senator),6 the supermajority requirement to overcome a
presidential veto.7 All of this makes it difficult for Congress to reach
agreement on clear and comprehensive policies.8 As a result, Congress
often leaves important policy choices to agencies, rather than making
those choices itself.9 Nevertheless, members frequently fixate not on
3. See discussion infra Section II.A.; Charles J. Cooper, Confronting the

Administrative State, NAT’L AFFAIRS (2015), https://www.nationalaffairs.com/
publications/detail/confronting-the-administrative-state.
4. See U.S. CONST. art. I, § 1, cl. 1 (1789).
5. See Michael C. Mukulic, The Emergence of Contextually Constrained
Purposivism, 91 NOTRE DAME L. REV. ONLINE 128, 143 (2016) (observing that “[t]here
are 535 members of Congress; each one might have a different reason for yelling ‘yea’”);
Frederick Schauer, Incentives, Reputation, and the Inglorious Determinants of Judicial
Behavior, 68 U. CIN. L. REV. 615, 635 (2000) (describing as an “empirical question”
“how many of the 535 members of Congress are trying to maximize their personal
interest in power or re-election even at the expense of the public interest”).
6. Douglas Kriner, Can Enhanced Oversight Repair “The Broken Branch”?, 89
B.U. L. REV. 765, 768–69 (2009) (describing how the Senate’s rules can thwart agreement
on policies that a majority of the body supports).
7. U.S. CONST. art. I, § 7, cl. 2–3 (1789).
8. See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the
Separation of Powers, 126 HARV. L REV. 411, 440–44 (2012) (discussing Congress’s
structural and political impediments to collective action); Kriner, supra note 6, at 766–69
(discussing the same).
9. See, e.g., Janna Rezaee, Abby Wood & Sean Gailmard, Agency Problems,
Bureaucratic Policy, and Legislative Oversight 2 (Nov. 2017) (unpublished manuscript)
(on file at https://www.ocf.berkeley.edu/~gailmard/rwg.oversight.pdf) (observing that
“the Patient Protection and Affordable Care Act delegates to the Secretary of Health and
Human Services everything from the reimbursement structure for insurance companies,
to determination of reasonable rate increases, to the establishment of a high risk health
insurance pool.”); Kriner, supra note 6, at 769-70 (describing “Congress’s abdication of
2018] DELEGATION AND ITS DISCONTENTS 187
their own complicity in expanding administrative lawmaking power, but

on an external tormentor that drives the need for constitutional
restoration: the Chevron doctrine.10 In the view of these restoration-
minded legislators and their judicial fellow travelers, the courts have
used Chevron—which requires courts to defer to agencies’ reasonable
interpretations of ambiguous statutes11—to cede more and more
policymaking12 ground to federal agencies. By doing so, they believe that
the courts have upended the separation of powers in two ways: by
allowing the administrative state to wield legislative power that the
Constitution has actually vested in Congress, and by usurping the
Judiciary’s right to “say what the law is” in the cases or controversies
falling within its jurisdiction.13 Even the White House has entered the
fray. When selecting nominees for the federal bench, President Trump
its war powers to the President”). Cf. Bradley & Morrison, supra note 8 (“While statutory
delegations to the executive tend to be more robust and unqualified during times of
unified government, they have become a general hallmark of congressional-executive
relations regardless of partisan alignments. Congress of course may have good reasons
for such delegations, but the key point is that legislative power is being transferred to the
executive branch rather than jealously guarded as envisioned by the Madisonian
conception.”).
10. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
11. Chevron, 467 U.S. at 842–43.
12. This Article uses the terms “policymaking” and “lawmaking” interchangeably.
Both refer to a spectrum of activity ranging from the identification of previously unclear
but arguably pre-existing legal rights and obligations on the one hand (e.g., ordinary
statutory interpretation), to the creation of wholly new legal rights and obligations on the
other (e.g., legislation or federal common lawmaking). It accordingly excludes the
application of statutory language that clearly answers the legal questions presented for
resolution. See Peter Westen & Jeffrey S. Lehman, Is There Life for Erie After the Death
of Diversity?, 78 MICH. L. REV. 311, 332 (1980) (“The difference between ‘common law’
and ‘statutory interpretation’ is a difference in emphasis rather than a difference in kind.
The more definite and explicit the prevailing legislative policy, the more likely a court
will describe its lawmaking as statutory interpretation; the less precise and less explicit
the perceived legislative policy, the more likely a court will speak of common law. The
distinction, however, is entirely one of degree.”). Similarly, other scholars, in the federal
common law context, have adopted broad definitions of “policymaking” or “lawmaking.”
See, e.g., RICHARD H. FALLON, JR., ET AL., HART & WECHSLER’S THE FEDERAL COURTS
AND THE FEDERAL SYSTEM 607 (6th ed. 2009) (“As specific evidence of legislative
purpose with respect to the issue at hand attenuates, all interpretation shades into judicial
lawmaking.”); Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99
HARV. L. REV. 881, 890 (1986) (defining “federal common law” as “any rule of federal
law created by a court (usually but not invariably a federal court) when the substance of
that rule is not clearly suggested by federal enactments—constitutional or
congressional”).
13. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); Bradley & Morrison,
supra note 8 at 444–45.
apparently places significant weight on whether they will reign in the

regulatory state.14
The latest legislative effort in this battle is the Separation of Powers
Restoration Act (SOPRA),15 which aims to restore the “proper”
constitutional balance by eliminating altogether the interpretive
deference courts afford agencies under the Chevron doctrine and its
progeny. If passed, SOPRA would amend the Administrative Procedure
Act to require de novo judicial review of agency statutory
interpretations.16 The expectation is that judges will be more respectful of
Congress’s policy choices than agencies who, when given lawmaking
discretion, routinely use it to advance their own notions of good public
policy.17 Judicial arguments against Chevron sound a similar note, with
added concerns over the impact that Chevron deference has had on the
courts’ decision-making authority and independence.18
14. See Josh Blackman, Is Trump Restoring Separation of Powers?, NAT’L REV.
(Nov. 20, 2017), https://www.nationalreview.com/2017/11/donald-trump-separation-
powers-solid-job/; Kevin Daley, White House Counsel Reveals the Secret of Trump’s
Judicial Selection Process, THE DAILY CALLER (Feb. 22, 2018)
http://dailycaller.com/2018/02/22/cpac-white-house-counsel-judicial-selection/.
15. Separation of Powers Restoration Act of 2016, H.R. 4768, 114th Cong. (2016).
Members of Congress (particularly Rep. Bob Goodlatte (R-VA)) have tried to statutorily
alter the Supreme Court’s agency deference jurisprudence before. See, e.g., H.R. 5, 115th
Cong. (1st Sess. 2017) (the “Regulatory Accountability Act of 2017”) (proposing to
prohibit judicial deference to agencies’ statutory interpretations in rules adopted outside
of the rulemaking process, in agency rules not conforming to OIRA guidance on cost-
benefit analysis, and in agency guidance documents); Regulatory Accountability Act of
2013, H.R. 2122, 113th Cong. (1st Sess. 2013) (proposing the same); Regulatory
Accountability Act of 2011, H.R. 3010, 112th Cong. (1st Sess. 2011) (proposing the
same); Bumpers Amendment, S. 2408, 94th Cong. (1st Sess. 1975) (proposing to overrule
NLRB v. Hearst Publications, Inc. by requiring courts to “independently decide all
questions of law”). Members of Congress have also introduced other SOPRA-like bills
that target particular agencies or areas of regulation. See The Judicial Review
Improvement Act of 2017, H.R. 3950 (2017) (previously introduced by Rep. Mia Love
(R-UT) in 2017, it would require courts to review de novo statutory interpretations
conducted by federal financial regulators: the Board of Governors of the Federal Reserve
System, the Bureau of Consumer Financial Protection, the Commodity Futures Trading
Commission, the Federal Deposit Insurance Corporation, the Federal Housing Finance
Agency, the Office of the Comptroller of the Currency, the National Credit Union
Administration, and the Securities and Exchange Commission).
16. Id.
17. See Ilya Somin, Gorsuch is Right About Chevron Deference, THE WASH.
POST (Mar. 25, 2017), https://www.washingtonpost.com/news/volokh-conspiracy
/wp/2017/03/25/gorsuch-is-right-about-chevron-deference/?utm_term=.b07a346228b6
(arguing that Chevron allows “the meaning of federal law [to change] with the political
winds and the partisan agendas of succeeding administrations”).
18. See id.; Cooper, supra note 3.
SOPRA and other recent attacks on Chevron are conceptually

supported by two categories of argument. The first is what I call an
Essentialist argument, which asserts that the task of statutory
interpretation is an essential (and hence inalienable) part of the judicial
function committed to the Judiciary by the Article III Vesting Clause.19
Because of the Article III Vesting Clause, Congress has no authority to
strip courts of the power definitively to interpret federal statutes,
including those that are genuinely ambiguous. Essentialists thusly argue
that, Chevron, Auer,20 and other interpretive deference decisions
incorrectly assume that Congress has authority to choose its preferred
interpreter.21 The second category is what I call a Pragmatist argument,
which asserts that courts are a better choice for interpreting ambiguous
statutes than are agencies, even if Congress has the authority to choose
between them.22
In this Article, I challenge both the Essentialist and Pragmatist
critiques of Chevron. Essentialists posit a judicial control over statutory
interpretation for which there is questionable constitutional support, and
which fits uncomfortably with democratic first principles of self-
governance.23 Pragmatists, for their part, make unconvincing arguments
about how de novo judicial review will more effectively foster “good
government” than does judicial deference under Chevron and its
progeny.24 Contrary to Pragmatists’ assertions, de novo judicial review
would not necessarily foster more complete fulfillment of Congress’s
policy preferences.25 In fact, it is at least as likely to undermine that
fulfillment by substantially diluting the effectiveness of Congress’s
oversight powers, which it uses to communicate with agencies and
influence the policies they adopt.26 In short, placing the policymaking
currently conducted by administrative agencies behind a judicial
firewall—based on either Essentialist or Pragmatic arguments—
endangers Congress’s control over federal law creation.27 Accordingly,
19. U.S. CONST. art. III, § 1, cl. 1.

20. Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding that the Secretary of Labor’s
interpretation of his own regulations is controlling “unless ‘plainly erroneous or
inconsistent with the regulation’”) (citing Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 359 (1989)).
21. See Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the
Administrative State, 89 COLUM. L. REV. 452, 475–78, 488–99 (1989).
22. See Pragmatist, DICTIONARY.COM (2018).
23. See discussion infra Section III.A.
24. See discussion infra Section III.B.
25. See id.
26. Id.
27. See discussion infra Part III.
this Article advises against the adoption of SOPRA or similar proposals

to eliminate judicial deference to agency interpretation.
This Article proceeds in three parts. Part II describes the Essentialist
and Pragmatist critiques of Chevron, focusing primarily on SOPRA and
anti-Chevron arguments raised by Justices Neil Gorsuch and Clarence
Thomas. Part III critiques the critiques, and demonstrates that they are
somewhat less convincing than their advocates may believe. Part IV
provides a brief conclusion, and points to additional questions about
Congress’s authority to manage federal lawmaking that may serve as the
foundation for future inquiry.
II. ATTACKS ON AGENCY POLICYMAKING
The judicial and academic literature on Chevron and its progeny is

beyond voluminous, and it expresses a range of views on the doctrine’s
legality and wisdom.28 A frequent target among its critics is the
lawmaking latitude it affords administrative agencies.29 By treating
statutory ambiguity as an implicit delegation of lawmaking power to
agencies, critics often insist Chevron has allowed agencies to implement
their independent policy preferences with little if any regard for what
Congress actually wants.30 Expansions of Chevron only exacerbate the
problem. Whether it is Auer deference, which directs courts to defer to
the reasonable interpretations of an agency’s ambiguous regulations,31 or
the Supreme Court’s conclusion that courts must defer to an agency’s
interpretation of the statutes limiting that agency’s own jurisdiction,32
28. As of February 23, 2018, a search for references citing to Chevron yielded over
84,000 documents in Westlaw’s KeyCite, including 15,000 cases and more than 11,000
law review articles. Citing References of Chevron, U.S.A. v. Nat’l Res. Def. Council,
Inc., WESTLAW (2018), https://1.next.westlaw.com/RelatedInformation/I1d248e419
c9711d993e6d35cc61aab4a/kcCitingReferences.html?originationContext=documentTab
&transitionType=CitingReferences&contextData=(sc.UserEnteredCitation)&docSource=
281f4edef0524ad6b9172fd9a85b3ffc&rulebookMode=false (last visited Mar. 24, 2018).
29. See Linda D. Jellum, The Impact of the Rise and Fall of Chevron on the
Executive’s Power to Make and Interpret Law, 44 Loy. U. Chi. L.J. 140, 167–69 (2012)
(“Before Chevron, agencies could legitimately make law when Congress explicitly
delegated; after Chevron, power shifted, as agencies could legitimately make law when a
statute was ambiguous regardless of whether Congress explicitly delegated.”).
30. See Farina, supra note 21 at 502–03 (noting that “[m]any observers of the growth
of the administrative state [believe that] administrative discretion is rarely directed . . . by
any person or institution outside the agency,” and the “very plausible skepticism that
either Congress or the President can penetrate the immense size and bewildering
complexity of the federal bureaucracy”).
31. Auer, 519 U.S. at 461 (holding that the Labor Secretary’s interpretation of his
own regulations controls unless plainly erroneous or inconsistent with those regulations).
32. See City of Arlington, Texas v. FCC, 569 U.S. 290, 307 (2013).
agencies now have breathtaking lawmaking power that they wield

increasingly outside of the Judiciary’s oversight. Critics argue that this
would be concerning if limited to statutory or regulatory interpretation,
but it is all the more so when added to Congress’s direct delegations of
lawmaking power to agencies and the Court’s largely toothless
nondelegation doctrine.33 All of this administrative lawmaking
undermines the separation of powers by assigning legal consequences to
primary conduct that Congress does not intend, and by infringing on the
Judiciary’s primacy as the traditional interpreter of federal law and as a
check on the political Branches.
From this critical cacophony we can glean at least two clear positions
on the problems caused by Chevron specifically, and the problems
caused by congressional delegations of lawmaking power more
generally: the Essentialists Critique and the Pragmatist Critique. Each is
outlined below.34
A. Judicial Essentialism
Judicial Essentialists believe, broadly speaking, that the Constitution

leaves to federal courts the task of definitively interpreting ambiguous
federal statutes.35 Chevron and its progeny—particularly the Supreme
Court’s decisions in Brand X—invite violation of basic constitutional
principles by permitting the Executive Branch’s interpretation of statutes
to supersede those of the Judiciary.36 While there are many examples of
judges deploying the Judicial Essentialist critique against Chevron and
other aspects of the Supreme Court’s delegation jurisprudence, one need
look no further than a lengthy and far-ranging concurrence authored by
then-Judge Neil Gorsuch, while he was still on the Tenth Circuit.37 To
fully understanding Judge Gorsuch’s defense of Judicial Essentialism, it
is first necessary to describe the interpretive disagreement that prompted
33. See, e.g., Ronald A. Cass, Viva La Deference?, 83 GEO. WASH. L. REV. 1294,
1319–20 (2015) (arguing that “the reduction in judicial review [of agency decision-
making] should not be seen in isolation but in the context of a series of decisions
abdicating responsibility for legal constraints on exercises of federal power,” including
the Court’s nondelegation jurisprudence).
34. See infra Section II.A, II.B.
35. See Bernard W. Bell, Metademocratic Interpretation and Separation of Powers, 2
N.Y.U. J. LEGIS. & PUB. POL’Y 1, 21–28 (1998).
36. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967
(2005).
37. Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch,
J., concurring).
it and placed the Tenth Circuit at loggerheads with the Board of

Immigration Appeals (“BIA”).38
For a number of years, the Tenth Circuit and the BIA have tangled
over the meaning of two seemingly contradictory provisions in the
Immigration and Nationality Act (“INA”).39 Under the first provision—8
U.S.C. § 1255(i)(2)(A)—Congress appears to entrust the Attorney
General with the discretion to adjust the deportation status of, and grant
lawful residency to, immigrants who have entered the United States
illegally.40 Under the second provision—8 U.S.C. § 1182(a)(9)(C)(ii)—
any immigrant who enters the country illegally more than once is
categorically banned from gaining lawful residence until they have
completed a ten-year waiting period outside of the United States.41 In
Padilla-Caldera v. Gonzales (Padilla-Caldera I), the Tenth Circuit asked
whether the discretion given to the Attorney General in the first
provision allows him to override the waiting period otherwise required
by the second.42 The court resolved that tension in the two provisions in
favor of the Attorney General’s discretion.43 In In re Briones, the BIA
subsequently adopted a contradictory position, deciding as “a matter of
policy discretion” that whenever the waiting period requirement applies,
it trumps the Attorney General’s discretion.44 When the BIA asserted its
position against a petitioner in a subsequent Tenth Circuit case—Padilla-
Caldera II—the Bureau’s action forced the Tenth Circuit to resolve the
conflict.45 Based on its understanding of Chevron and Brand X, and
based on the ambiguity of the INA provisions in question, the panel
concluded that it had to defer to the BIA’s interpretation of the
provisions and overrule Padilla-Caldera I.46 However, the BIA’s
understanding of its delegated legislative authority under Chevron and
Brand X was even more expansive than the Tenth Circuit apparently
realized at first.
In a subsequent case, De Niz Robles v. Lynch, the agency asserted
not only that it had the authority under Chevron and Brand X to overrule
38. See id. at 1143–46.

39. Immigration and Nationality Act, Amendments, Pub. L. No. 89–236, 79 Stat. 911
(1965).
40. 8 U.S.C. § 1255(i)(2)(A) (2008).
41. 8 U.S.C. § 1182(a)(9)(C) (2012).
42. Padilla-Caldera v. Gonzales (Padilla-Caldera I), 426 F.3d 1294, 1296 (10th Cir.
2005) amended and superseded on reh’g by 453 F.3d 1237 (10th Cir. 2006).
43. Padilla-Caldera I, 453 F.3d at 1242–44.
44. In the Matter of Briones, 24 I&N Dec. 355, 371 (2007).
45. Padilla-Caldera v. Holder (Padilla-Caldera II), 637 F.3d 1140, 1148–52 (10th
Cir. 2011).
46. Id.
prior judicial interpretations of the INA prospectively (i.e., in judicial

cases a court has yet to decide), but that it could also overrule judicial
interpretations of the INA retrospectively (i.e., in judicial cases a court
has already decided).47 Accordingly, the BIA argued that its
interpretation of §§ 1255(i)(2)(A) and 1182(a)(9)(C)(ii) in In re Briones
negated the Attorney General’s status adjustment discretion even before
the Tenth Circuit decided Padilla-Caldera I.48 As a result, immigrants
who remained in the country in reliance on Padilla-Caldera I, and
regardless of how long they had done so, had to wait another ten years
outside of the United States.49 In short, the Attorney General would have
no authority to adjust the status of immigrants who applied for
discretionary relief before the BIA decided In re Briones, and the BIA
would count none of the time they had already waited toward satisfaction
of the waiting period requirement (even if they had already been waiting
for years).50 The court rejected this argument, but not by disputing that
the BIA’s interpretations of the provisions were entitled to Chevron
deference.51 On that score, the BIA was on solid footing. Instead, the
court cited the well-established judicial presumption against retroactivity
that applies to all exercises of legislative authority (whether by Congress
or by agencies), and the Supreme Court’s conclusion that Congress must
expressly delegate to agencies the power to promulgate retrospective
rules.52 Congress made no such express delegation to the BIA, and so the
court concluded that its interpretation of §§1255(i)(2)(A) and
1182(a)(9)(C)(i)(I) could not apply retroactively.53
Finally, in Gutierrez-Brizuela v. Lynch, the BIA returned to the
Tenth Circuit with yet another assertion of previously unexpressed power
to definitively reconcile § 1255(i)(2)(A) and 1182(a)(9)(C)(ii).54 Here,
the BIA argued that its holding in In re Briones, even if it did not apply
to conduct that predated Padilla-Caldera I, nevertheless applies to
conduct between Padilla-Caldera I and Padilla-Caldera II.55 Unlike De
Niz Robles, who relied on Padilla-Caldera I before the BIA decided In
re Briones, Gutierrez-Brizuela sought a status adjustment after the BIA
decided In re Briones but before the Tenth Circuit accepted that decision
47. De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015).
48. Padilla-Caldera II, 637 F.3d at 1143–44.
49. See Gutierrez-Brizuela, 834 F.3d at 1142.
50. See id. at 1146.
51. Id. at 1148.
52. Id. at 1144–45 (citing De Niz Robles, 803 F.3d at 1172–74).
53. Id. at 1145–46, 1148.
54. Id. at 1146–48.
55. Id.
in Padilla-Caldera II.56 From the BIA’s perspective, In re Briones

applied immediately to Gutierrez-Brizuela’s situation and of its own
force; it was legally binding even before it was formally recognized and
accepted by the Tenth Circuit in Padilla-Caldera II.57 Again, the Tenth
Circuit disagreed.58 Writing for the court, Judge Gorsuch observed that
In re Briones became binding in the Tenth Circuit only after the court
found that it satisfied Chevron step two and Brand X.59 Chevron and
Brand X require federal courts to scrutinize the agency interpretations of
ambiguous statutes that fall under them, and courts need only accept
those interpretations if they withstand that scrutiny.60 In re Briones’
soundness was not tested until Padilla-Caldera II, and so it could not
have become binding precedent in the Tenth Circuit until the court issued
Padilla-Caldera II.61 The court also reminded the BIA about the
presumption against retroactivity it discussed in De Niz Robles which, in
turn, is partly grounded on due process and equal protection concerns.62
“[L]egislation is presumptively prospective in its operation because the
retroactive application of new penalties to past conduct that affected
persons cannot now change denies them fair notice of the law and risks
endowing a decisionmaker expressly influenced by majoritarian politics
with the power to single out disfavored individuals for mistreatment.”63
Thus, the Tenth Circuit, for a second time, thwarted the BIA’s efforts to
expand its delegated interpretive authority.64
This protracted back-and-forth between the Tenth Circuit and the
BIA over the latter’s power to retrospectively establish immigration
policy sets the stage for—and explains the exasperated tone of—a
lengthy concurrence from Judge Gorsuch.65 He begins with an
observation that frames his concerns as fundamentally and unavoidably
constitutional (i.e., foundational).66 “[T]he fact is Chevron and Brand X
permit executive bureaucracies to swallow huge amounts of core judicial
and legislative power and concentrate federal power in a way that seems
more than a little difficult to square with the Constitution of the framers’
56. Id. at 1144–45.

57. Id. at 1146–48.
58. Id. at 1148.
59. Id. at 1145, 1147–48.
60. See id. at 1147–48.
61. Id.
62. Id. at 1146.
63. Id. (citing De Niz Robles, 803 F.3d at 1169–70).
64. See id.; De Niz Robles, 803 F.3d 1165.
65. Gutierrez-Brizuela, 834 F.3d at 1149–58 (Gorsuch, J., concurring).
66. Id. at 1149.
design.”67 He thus establishes two important features of the Essentialist

critique: (1) the Constitution establishes “core” powers that are clearly
and cleanly distinguishable from each other; and (2) the Supreme Court’s
deference jurisprudence—Chevron and Brand X in in this instance—
allows administrative agencies to wield core powers the Constitution, if
properly understood, denies them.68 He elaborates on this by relying on
two aspects of the American separation of powers that British political
theorist and historian M.J.C. Vile would have called the separation of
functions and the separation of agencies.69 The former refers to the
Constitution’s separation of the federal government’s powers into three
basic functions: the legislative function, the judicial function, and the
executive function.70 The second refers to the Framers’ decision to “vest”
each of these powers in a distinct agent (i.e., Branch) of the government,
and to ensure to the extent practicable that no single Branch performs
more than one core functions at any given time.71 Thus, according to
Judge Gorsuch:
[T]he framers endowed the people’s representatives with the

authority to prescribe new rules of general applicability
prospectively [the legislative function]. In the executive, they
placed the task of ensuring the legislature’s rules are faithfully
executed [the executive function] in the hands of a single person
also responsive to the people. And in the judiciary, they charged
individuals insulated from political pressures with the job of
interpreting the law and applying it retroactively to resolve past
disputes [the judicial function].72
Such separation pointed toward a single, ultimate purpose: to “guard

against governmental encroachment on the people’s liberties.”73 “What
would happen,” Judge Gorsuch muses rhetorically, “if the political
majorities who run the legislative and executive branches could decide
cases and controversies over past facts?”74 Encroachments on individual
liberties such as those caused by laws with retroactive application (he’s
67. Id.
68. See id.
69. M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 8–22 (2d ed.
1998).
70. See id. at 14, 17–18 (2d ed. 1998).
71. See id. at 14, 15–17.
72. Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J. concurring).
73. Id.
74. Id.
looking at you, BIA).75 Similar predations would result if the Judiciary

performed the legislative function of adopting prospective rules; “[t]he
very idea of self-government would soon be at risk of withering to the
point of pointlessness.”76
There are at least two senses in which it may be the province of the
courts to “say what the law is.”77 In the shallow sense, courts are tasked
with identifying applicable legal rules, but enjoy no priority or
independent privilege in shaping the content of those laws. Any
government actor with a legitimate claim to lawmaking authority could
form binding rules governing a dispute.78 The courts would then be left
to test the legitimacy claim of that putative lawmaker. Thus, for instance,
Congress could devolve on an administrative agency responsibility for
creating or definitively interpreting legal rules, and could also order that
the courts to apply those new rules or interpretations to the appropriate
cases. Saying what the law “is,” in this instance, means identifying the
applicable law governing the dispute, which can come directly from
Congress, from an agency, or from a court if Congress so chooses.79 It
may secondarily task the courts with ensuring that the putative lawmaker
actually has legitimate authority to make laws, as well as ensuring that
the lawmaker stays within the bounds of whatever lawmaking authority
Congress granted it. The second, deeper sense of “say[ing] what the law
is” entails more than mere legal rule identification and application. It
implies a claimed right to create that law or, in the strictly interpretive
context, to independently flesh out the definitive meaning of rules
created by others.80 Here, federal courts do have a proprietary interest in
75. Id.
76. Id.
77. Id. at 1156.
78. See, e.g., Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM.
L. REV. 1, 27 (1983) (“Enforcement of other constitutional restrictions aside, the only
judicial task is to determine what statutory authority has been conferred upon the
administrative agency. Once it has done so, the court has discharged its duty to say what
the law is.”).
79. The Court gave explicit expression to this idea in a pre-Chevron case, Ford Motor
Credit Co. v. Milhollin, 444 U.S. 555, 568 (1980). There, the Court accorded substantial
deference to the Federal Reserve Board’s interpretation of a provision in the Truth in
Lending Act. In pointing out that the Act’s language and legislative history “evince[d] a
decided preference for resolving interpretive issues by uniform administrative decision,”
the Court made clear that judges should following Congress’s preference, and that doing
so would not diminish the Judiciary’s Article III role: “[W]hile not abdicating their
ultimate judicial responsibility to determine the law, judges ought to refrain from
substituting their own interstitial lawmaking for that of the [agency], so long as the
latter’s lawmaking is not irrational.” Id. at 568 (internal citations omitted).
80. See Michael Herz, Deference Running Riot: Separating Interpretation and
Lawmaking Under Chevron, 6 ADMIN. L. REV. 187 (1992).
the law they apply in disputes presented for their resolution.81 They do
have pride-of-place with respect to law interpretation.82 Under this
deeper view of “saying what the law is,” Congress has less authority to
choose its interpretive delegate. There are circumstances under which
Congress cannot choose an agency’s interpretation or law creation over
that of a federal court without violating the separation of powers.83
In his Gutierrez-Brizuela concurrence, Judge Gorsuch seems to be
saying that a federal court’s interpretation of a federal statute is an
essential part of the cases or controversies in which federal courts
perform their judicial function.84 In other words, cases and controversies,
as Article III uses those terms, refer not only to the interactions between
litigants that give rise to judicially cognizable disputes, but also to the
rules that attach legal consequences to those interactions.85 Both law and
facts fall inescapably within a court’s decisional authority when they
form a case or controversy.86 If that is so, then federal courts do not
merely identify and apply legal rules. If their relationship with legal rules
were so limited, one would expect them to have less of an institutional
interest in the content of that law than Judge Gorsuch seems to indicate.
Their task would be to ensure that the putative rule provider (whoever
that may be) has a legitimate governance claim over the actions of the
parties. That task completed, courts could then collect evidence, apply
81. See Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J. concurring).

82. See, e.g., Antonin Scalia, Judicial Deference to Agency Interpretations of Law,
1989 DUKE L.J. 511, 516 (1989) (arguing that courts have the right to interpret ambiguous
statutes when Congress formed an intent but expressed it unclearly, whereas courts
should defer to agencies when Congress formed no particular intent and thus left the
resulting policy question to an agency).
83. See generally Farina, supra note 21 (arguing that Chevron’s assumption that
Congress can force courts to accept the interpretations of another entity violates
established separation of powers and administrative law norms).
84. See Gutierrez-Brizuela, 834 F.3d at 1149–58 (Gorsuch, J., concurring).
85. U.S. CONST. art. III; Gutierrez-Brizuela, 834 F.3d at 1149–52 (Gorsuch, J.
concurring).
86. When describing the effect of In re Briones, Judge Gorsuch observes that “[q]uite
literally, then, after this court has declared the statutes’ meaning and issued a final
decision, an executive agency was permitted to (and did) tell us to reverse our decision
like some sort of super court of appeals.” Gutierrez-Brizuela, 834 F.3d at 1150 (Gorsuch,
J., concurring). Shortly thereafter, he said that the Tenth Circuit’s decision to halt the
BIA’s retroactive application of In re Briones “[n]o doubt . . . addresses some of the due
process and equal protection problems that follow from allowing politicized
decisionmakers to decide cases and controversies about the meaning of existing law.” Id.
at 1151; see also id. at 1151–52 (“[R]ather than completing the task expressly assigned to
us, rather than interpreting statutory provisions, declaring what the law is, and
overturning inconsistent agency action, Chevron step two tells us we must allow an
executive agency to resolve the meaning of any ambiguous statutory provision.”)
(internal quotations and ellipsis omitted).
rules, and provide any appropriate remedies. For Judge Gorsuch,

however, “to say what the law is” means more than that; it means that
federal courts should have the autonomy to identify legal rules in the
deep sense described above.87 Article III should be read as giving them
the sole power to decide cases or controversies, of which determining the
meaning of legal rules is an inseparable part, and so courts must have
pride of place under the Constitution to interpret those laws whenever
their jurisdiction attaches.88
Of course, Judge Gorsuch does not go so far as to suggest that courts
have (or even should have) the final word on the content of federal
statutory law; his claim seems narrower than that.89 Rather, he just
doesn’t believe that administrative agencies can supersede judicial
determinations of what federal statutes mean, even if those agencies do
so with Congress’s explicit blessing.90 Moreover, he seems to believe
that Congress has no authority to choose its preferred interpreter of the
87. Id. at 1152. “But where in all this does a court interpret the law and say what it
is? When does a court independently decide what the statute means and whether it has or
has not vested a legal right in a person? Where Chevron applies that job seems to have
gone extinct.” (emphasis in original). Id.; see also Monaghan, supra note 78 (“Marbury
proceeds, at least in part, upon an apparently unified conception of the judicial function:
as the authoritative expositors of law, courts are required to make an independent judicial
judgment on the content of the applicable law, whether the legal question is constitutional
or statutory”).
88. Judge Gorsuch brings this conviction more fully into view when he argues that
definitive interpretation of federal statutes by courts is “often constitutionally
compelled.” Gutierrez-Brizuela, 834 F.3d at 1151–52 (Gorsuch, J. concurring). After
pointing out that Congress in the Administrative Procedure Act and the INA has tasked
courts with determining the meaning of its statutes, he reaches for The Federalist No. 78
for support: “The interpretation of the laws is the proper and peculiar province of the
courts and it belongs to judges to ascertain…the meaning of any particular act proceeding
from the legislative body.” Id. at 1151 n.3 (citing THE FEDERALIST NO. 78 (Alexander
Hamilton)).
89. See id. at 1158.
90. In any case, Judge Gorsuch certainly has doubts as to whether Congress has ever
actually given its blessing. See Gutierrez-Brizuela, 834 F.3d at 1153 (Gorsuch, J.,
concurring) (“Chevron says that we should infer from any statutory ambiguity Congress’s
‘intent’ to ‘delegate’ its ‘legislative authority’ to the executive to make ‘reasonable’
policy choices.”) (citing Chevron v. U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S.
837, 843–44 (1984)); Gutierrez-Brizuela, 834 F.3d at 1153 (Gorsuch, J. concurring)
(“But where exactly has Congress expressed this intent?”); Id. (“[I]n the [Administrative
Procedure Act (“APA”)] Congress expressly vested the courts with the responsibility to
interpret statutory provisions and overturn agency action inconsistent with those
interpretations. . . . Meanwhile, not a word can be found here about delegating legislative
authority to agencies. On this record, how can anyone fairly say that Congress ‘intended’
for courts to abdicate their statutory duty under [the APA] and instead ‘intended’ to
delegate away its legislative power to executive agencies?”) (internal quotations and
ellipsis omitted).
laws it passes; that task rests irrevocably with the courts, whose
interpretations only Congress itself can supersede, by passing subsequent
legislation.91 Both his positions derive from his understanding of how the
Constitution incorporates the separation of powers concept.92 The
Framers, according to Judge Gorsuch, understood well that “executives
throughout history had sought to exploit ambiguous laws as license for
all their prerogative.”93 They also understood the dangers of situating
both prospective law creation and retrospective law application in the
hands of political actors, who would invariably face a temptation to
target unpopular minority groups.94 It is for this reason the Framers
separated law application (i.e., the judicial function which, from Judge
Gorsuch’s perspective, includes statutory interpretation) from law
91. To better grasp Judge Gorsuch’s arguments on the roles of the Branches in
establishing the content of federal statutory law, it may be important to distinguish
between “statutory interpretation” and “legislation.” It is true that, in some sense, both
statutory interpretation and legislation create new legal obligations. See Farina, supra
note 21, at 466 (“The process of statutory interpretation inevitably involves some
lawmaking, as well as [a] law finding, component.”). Nevertheless, there are important
practical and conceptual differences between the two that might inform Judge Gorsuch’s
thinking. With regard to interpretation, the identification of obligations may entail “filling
gaps” in pre-existing statutory language, or “clarifying” proleptical legal rights and
obligations in a statute. See Alfred Rieg, Judicial Interpretation of Written Rules, 40 LA.
L. REV. 49, 49 (1979); Frank H. Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533,
545 (1983). Statutory interpretation is therefore an exercise in finding or elaborating on a
“meaning” that originates in prior statutory declarations. See Rieg, supra note 91 at 49–
50. Legislation does not depend on pre-existing substantive legal rules for its existence.
See Legislation, BLACK’S LAW DICTIONARY (10th ed. 2014). Rather, legislation can create
legal obligations without any reference to or reliance on any legal rules that come before
them (other than the procedural rules that provide for their creation). See id. Judge
Gorsuch appears to view the former as falling within the particular province of judicial
decision-making, whereas the latter falls within the particular province of legislative
decision-making. See Gutierrez-Brizuela, 834 F.3d at 1151 n.3, 1153 (Gorsuch, J.,
concurring). If that is the case, saying that Congress determines statutory “meaning” by
passing new legislation in response to a judicial interpretation with which it disagrees is a
misdescription of what Congress actually does. Congress does not find or elaborate on
the meaning of pre-existing statutes when it legislates; it instead replaces or adds to prior
statutes and, in the process, eliminates rather than clarifies them. For his part, Judge
Gorsuch seems to think that administrative agencies operating under Chevron engage in
statutory interpretation rather than in legislating, although he conflates the distinct
activities of “filling legislative voids” and legislating. See Gutierrez-Brizuela, 834 F.3d at
1153 (Gorsuch, J., concurring). Even if agencies are “lawmaking” when they resolve
statutory ambiguities under Chevron, as I argue below, Judge Gorsuch believes that
courts still have the exclusive statutory and constitutional duty to do that, and Chevron
prevents them from fulfilling that duty. See id.
92. Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J., concurring).
93. Id. (citing PHILIP HAMBURGER, IS ADMINISTRATIVE LAW UNLAWFUL? 287–91
(2014)).
94. See, e.g., Landgraf v. USI Film Products, 511 U.S. 244, 267–68 (1994).
creation (i.e., the legislative function), and entrusted the former only to
the Judiciary, which is insulated from group passion and political
vicissitudes.95 Congress, for its part, may engage in the legislative
function by passing statutes, but it does not have the additional right to
choose who interprets those statutes post-enactment.96
While Judge Gorsuch in his Gutierrez-Brizuela concurrence is a
singularly thorough and formidable Essentialist critique of Chevron and
its progeny, he is by no means a lone voice in the wilderness.97 Several
Supreme Court Justices—including at least one of his current
colleague—share his view that the interpretive power allowed to
administrative agencies through Chevron threatens the constitutional
balance.98 Justice Clarence Thomas has repeatedly asserted Chevron’s
illegitimacy, and did so on Essentialist terms relatively recently.99 In
Michigan v. EPA, the Court deemed unreasonable the EPA’s
interpretation of a Clean Air Act provision that would have allowed it to
regulate hazardous air pollutants emitted by certain power plants.100
Justice Thomas’s concurrence with the Court’s judgment expressed
dismay that Chevron strips the judiciary of its right to definitively
interpret federal statutes.101 “As I have explained elsewhere,” he begins,
“the judicial power, as originally understood, requires a court to exercise
its independent judgment in interpreting and expounding upon the
laws.”102 He continues:
Interpreting federal statutes—including ambiguous ones

administered by an agency—calls for that exercise of
independent judgment. Chevron deference precludes judges from
exercising that judgment, forcing them to abandon what they
believe is the best reading of an ambiguous statute in favor of an
agency’s construction. It thus wrests from Courts the ultimate
interpretive authority to say what the law is, and hands it over to
the Executive. Such a transfer is in tension with Article III’s
95. Compare Gutierrez-Brizuela, 834 F.3d at 1151 (Gorsuch, J., concurring)

(observing that “the principle of stare decisis was one entrenched and revered by the
framers precisely because they knew its importance as a weapon against tyranny”)
(internal quotations and ellipsis omitted).
96. See id. at 1151, 1153.
97. See Michigan v. E.P.A., 135 S. Ct. 2699 (2015) (Thomas, J., concurring).
98. See id.
99. Indeed, Justice Thomas views the general expansion of administrative
independence as constitutionally problematic. See Cooper, supra note 3.
100. Id.
101. Id. at 2712.
102. Id. (quoting Perez v. Mortgage Bankers Ass’n., 135 S. Ct. 1199, 1217 (2015))
(internal alternations to quotation omitted).
Vesting Clause, which vests the judicial power exclusively in

Article III courts, not administrative agencies.103
As with Judge Gorsuch’s Gutierrez-Brizuela concurrence, Justice

Thomas (1) sees Chevron as preventing federal courts from relying on
their own independent determinations of statutory meaning, which (2)
violates the Article III Vesting Clause, because (3) “say[ing] what the
law is”—giving definitive meaning to statutes applied in cases or
controversies—is an inalienable part of the judicial function assigned
exclusively to the courts.104 Accordingly, he views “saying what the law
is” in the deep rather than the shallow sense.105 The Constitution vests
courts with the power to formulate and derive statutory meaning on their
own and for themselves, and in so doing chooses the courts as
Congress’s interpretive agents within the context of Article III cases and
controversies.106 The right of “[i]ndependent judgment” is given to the
courts, according to Justice Thomas.107
The implications for Congress are a bit subtler. If, as Justice Thomas
goes on to argue, “agencies ‘interpreting’ ambiguous statutes typically
are not engaged in acts of interpretation at all . . . [but], as Chevron itself
acknowledged, they are engaged in the formulation of policy,” then
resolving statutory ambiguities is clearly a form of federal lawmaking.108
In other words, an ambiguous statute contains no congressional intent to
discover through interpretation; the statute may contain some indication
of Congress’s preferred policy, but does not itself select among the
permissible policy choices created by its ambiguity.109 Thus, any rules
arising out of such ambiguities are functionally new creations, though in
some sense traceable to policy choices Congress has already made. And
so, according to Justice Thomas, the Scylla and Charybdis for Chevron’s
proponents comes fully into view.110 Either resolving statutory
ambiguities is a lawmaking act that is part of the judicial function
assigned exclusively to the courts by the Article III Vesting Clause, or it
103. Id. (internal quotations and citations omitted).

104. Id.; Gutierrez-Brizuela, 834 F.3d 1149-58 (Gorsuch, J., concurring).
105. Michigan, 135 S. Ct. at 2712.
106. U.S. CONST. art. III; Michigan, 135 S. Ct. at 2712.
107. See Michigan, 135 S. Ct. at 2712.
108. Id. at 2712–13 (internal quotations omitted). “Statutory ambiguity thus becomes
an implicit delegation of rule-making authority, and that authority is used not to find the
best meaning of the text, but to formulate legally binding rules to fill in gaps based on
policy judgments made by the agency rather than Congress.” Id. at 2713.
109. See Ambiguous, OXFORD ENGLISH DICTIONARY (1989) (defining “ambiguous” as
“open to more than one interpretation,” and “unclear or inexact because a choice between
alternatives has not been made.”).
110. See Michigan, 135 S. Ct. at 2713.
is a lawmaking act assigned to Congress by the Article I Vesting

Clause.111 In neither case, as far as Justice Thomas is concerned, can it be
properly assigned to the Executive Branch.112 It appears, then, that
Congress is stuck. Either it must itself eliminate all statutory ambiguities
through amending legislation, or it must leave that task to the
Judiciary.113 It does not have the option of having the Executive Branch
do that work.114
Justice Thomas and Judge Gorsuch are not alone in their skepticism
of Chevron’s constitutionality.115 The House Judiciary Committee
expressed similar concerns in its report on the Separation of Powers
Restoration Act of 2016 (“SOPRA”).116 As described infra, most of the
Committee’s concerns related to the practical effects it finds Chevron
and its progeny have had on the power balance among the Branches.117
Nevertheless, its criticism of the doctrine begins with the Constitution.118
Echoing Justice Thomas and Judge Gorsuch, the Committee considered
Chief Justice Marshall’s declaration in Marbury that it is “the province
and duty of the Judicial Department to say what the law is” conclusive
evidence that the Constitution forbids judicial deference to agency
statutory interpretation.119 Further, this declaration informed the
Committee’s suspicion that the power of independent definitive
interpretation is an inalienable aspect of the Judicial function vested in
111. Id.
112. Id.
113. Id. Given the stark duality posited by Justice Thomas, one is left to wonder why,
if resolving statutory ambiguities is essentially a lawmaking function, it would be
acceptable for the Judiciary to do it? One possible response is temporal. Whereas an
administrative agency would seek to prospectively apply its newly created rule (again,
nominally based on a statutory ambiguity) the courts, by virtue of the limitations placed
on their powers by Article III, can only apply it retrospectively (i.e., to the facts of the
case in which it creates the new rule). See Gutierrez-Brizuela, 834 F.3d at 1144–47, 1146
n.1. Thus, judicial lawmaking does not violate the Article I Vesting Clause because it
isn’t legislation, which applies to future rather than to past or present conduct. See id.
Judge Gorsuch makes a related argument in his Gutierrez-Brizuela majority opinion. See
Gutierrez-Brizuela, 834 F.3d at 1146 n.1 (stating agency interpretations made under
Chevron are legally binding only after they receive judicial approval, but they are
analogous to legislation because they derive their binding authority from Congress).
From this perspective, the feature that distinguishes permissible from impermissible
lawmaking is not the creation of new rules, but scope of application (temporal and
jurisdictional).
114. Michigan, 135 S. Ct. at 2713.
115. See Somin, supra note 17 and accompanying text.
116. H.R. REP. NO. 114-622, at 2–6 (2016).
117. Id.
118. Id.
119. Id. at 5 (citing Marbury, 5 U.S. (1 Cranch) at 177).
the federal courts by Article III.120 Thus, the Committee doubted whether
“Congress can in any way delegate to the Executive Branch that power
held by the Judicial Branch,” or whether “the Judiciary itself possesses
any constitutional means to delegate that power to the Executive Branch,
even if it wanted to.”121 The Committee’s understanding of what
distinguishes the legislative function from the judicial function buttresses
this latter observation. As the courts do not possess the power to
legislate, they necessarily lack the power to delegate.122
To sum up, Essentialists believe that statutory interpretation is an
inalienable aspect of the judicial function assigned to the federal courts
by the Article III Vesting Clause. When the Judicial Department brings
cases or controversies within its jurisdiction, Congress has no
constitutional authority to divest it of independent and definitive
interpretive authority.123 To support this view, Essentialists frequently
rely on a deep rather than a shallow understanding of Chief Justice
Marshall’s declaration in Marbury that “[i]t is emphatically the province
and duty of the judicial department to say what the law is.”124 Under the
deep understanding, courts do not simply identify the law that must apply
to a particular case, they also derive the substantive meaning of that law
for themselves. Almost all statutory interpretation requires some degree
of lawmaking, because the interpreter must create or clarify previously
unexpressed or poorly expressed legal obligations in order to make that
120. Id.
121. Id. As I discuss in more detail below, the Committee seems to overlook a glaring
contradiction in its analysis. If, as the Committee appears to argue, the federal courts
have authority to definitively interpret statutes because doing so is inherent to the judicial
function, it also seems that Congress would have no authority to order courts to review
agency interpretations de novo. See generally Marbury, 5 U.S. (1 Cranch) at 137 (holding
that the Congress cannot, through legislation, alter the Judiciary’s Article III
jurisdiction’.). Yet that is exactly what SOPRA purports to do. Stated differently, the
argument that definitive statutory interpretation is integral to the judicial function also
means that Congress can do nothing to require or to forbid it through legislative action.
Id. SOPRA, APA § 706, or any other statute claiming to control how courts interpret
statutes can have no legal effect. Id. Like 28 U.S.C. §1254 (2012), which addresses the
Supreme Court’s original jurisdiction, legislation ordering courts to review agency
interpretations de novo could do no more than restate that which the Constitution already
requires. It is possible that the Committee assumed that Congress does have the authority
to direct how federal courts interpret federal statutes despite the fact that the power of
interpretation is inherent to the judicial function. Id. If that is so, however, the Committee
does not so much as hint at it.
122. “The Judiciary possesses power, under Article III of the Constitution, to decide
cases and controversies. It possesses no power, however, to legislate—the means needed .
. . to delegate or reassign the power of one Branch to another.” H.R. REP. NO. 114-622, at
5 (2016).
123. See id. at 1149–52.
124. Marbury, 5 U.S. (1 Cranch) at 177.
statutory language operative in the real world.125 This is especially true

when the interpreter encounters a genuinely ambiguous statute which, by
definition, presents several plausible policy options with no clear criteria
for choosing among them. Despite the fact that almost all statutory
interpretation involves lawmaking of some sort, Essentialists insist that it
is an irreducible part of the Judicial function that Congress cannot
transfer to the Executive Branch.126 The Chevron line of cases, which
recognizes in Congress the power to designate administrative agencies as
the primary interpreters of its statutes (or the regulations based on them),
flouts the Constitution’s assignment of functions amongst the
Branches.127 These cases also undermine the Constitution’s separation of
agencies, by allowing the Executive Branch to wield both its own power
and the legislative power reserved to Congress or the judicial power
reserved to the courts.128
B. Judicial Pragmatism
As indicated by the House Judiciary Committee Report on SOPRA,

the bill’s sponsors fall squarely into the Pragmatist camp.129 While
several of the points raised in favor of the bill sound in Essentialism, the
Report does not rest on only these.130 Instead, it ticks through a host of
consequentialist critiques to justify jettisoning Chevron and the
policymaking freedom it grants administrative agencies.131 There likely
is a basic, strategic reasons for this. Relying on Essentialist critiques
would require courts to, on their own initiative, adopt a course correction
and apply constitutional arguments against Chevron. If the question of
Chevron’s continuing viability is properly situated in a constitutional
125. At this point in history, the notion that statutory interpretation involves
lawmaking of some sort is both well-established and uncontroversial. See, e.g., Farina,
supra note 21, at 466; Lawrence C. Marshall, Let Congress Do It: The Case for an
Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177, 204 (1989) (“It is
important to recognize . . . that it will never be possible to eliminate the necessity for
judicial policy choices in the course of interpreting statutes.”). Cf. Jerome Frank, Words
and Music: Some Remarks on Statutory Interpretation, 41 COLUM. L. REV. 1259, 1269
(1947) (“Since our Constitutions allocate the legislative function to the legislatures, the
courts would seem to be acting beyond their powers were they frankly to legislate. Fear
of popular denunciation of illegal usurpation of power accordingly has led judges to
obscure by words what they actually did, what they could not help doing.”).
126. See H.R. REP. NO. 114-622, at 2–6 (2016).
127. See U.S. CONST. art I, II, III.
128. Cf. VILE, supra note 69.
129. See H.R. REP. NO. 114-622 (2016).
130. See id. at 2–6.
131. See id.
debate about the meaning of the Article III Vesting Clause, there would
obviously be no place for a legislative solution.132 Whatever else
Marbury may have said about the interpretive powers of the federal
courts, it made pellucidly clear that Congress cannot use a statute to
amend Article III.133 Nor, for that matter, has the Court seemed interested
in deferring to Congress on questions of constitutional meaning. Thus,
the Committee does nothing to hide its skepticism that the courts are
willing or able to abandon the Chevron doctrine.134 It flatly states that
“the Judicial Branch for more than thirty years has revealed the difficulty
it has faced in cleanly, clearly, simply, and definitively explicating
whether, why, how, and specifically when it becomes the Executive
Branch’s power to ‘determine what the law is,’ and not the courts’.”135
Accordingly, the Committee felt “it is appropriate for Congress to
overturn Chevron and Auer statutorily, rather than wait for the [Supreme]
Court to address their numerous deficiencies.”136 While Pragmatist
arguments could be limited to showing that Chevron does not reflect the
best available understanding of separation of powers in the Constitution,
the Committee uses them for more than simply helping the Supreme
Court to see reason.137 Instead, the Committee marshals these arguments
to (implicitly, or perhaps even accidentally) reserve for Congress the
power to manage administrative statutory interpretation.138 It fully
embraces the separation-of-powers heart of Chevron—that Congress has
the power to choose the primary interpreter of its statutes—while
rejecting Chevron’s assumption on how Congress has actually used that
power.139
On the whole, the Committee’s policy arguments against Chevron
arc toward one general conclusion: the doctrine does not “necessarily
foster[] good government” because it increases regulatory costs and
132. Marbury, 5 U.S. (1 Cranch) at 177–78 (holding that the Court interprets the
constitution and that legislation cannot alter that role).
133. Id. at 177–80.
134. See H.R. REP. NO. 114-622, at 9 (2016).
135. Id.
136. Id.
137. See id.
138. See id. As insinuated by the dissenting view included with the report, SOPRA’s
sponsors may have had instrumental reasons for proposing it. See id. at 20–48. Far from
wanting to restore the federal government’s separation of powers to something
resembling its initial position, the bill’s sponsors may have wanted to signal to anti-
regulatory interest groups their willingness to substantially depower the administrative
state. See id at 38. In essence, the dissenting view accuses the sponsors of employing
facially legitimate (though unpersuasive) legal and policy argumentation in the service of
selfish (and therefore illegitimate) political ends.
139. Id. at 1, 5.
creates undesirable incentives for government actors.140 More

specifically, it points to several broadly negative consequences brought
about by the policymaking latitude Chevron affords agencies.141 First,
“[i]t empowers agencies to choose in changing ways which among
alternative meanings is the meaning that the Federal Government will
give a statute at any given time.”142 While some might consider this type
of flexibility beneficial, as it allows agencies nimbly to adapt to changing
regulatory conditions, the Report argues that the degree of freedom
Chevron gives agencies breeds debilitating uncertainty.143 Regulated
entities cannot properly invest or order their affairs if the regulatory
landscape in which they operate can change with little notice.144 This
places firms in the untenable position of committing their scarce
resources to a compliance regime the agency may, on a whim,
completely reconfigure.145 This uncertainty also emboldens litigious
parties who would see Chevron’s presumed lack of predictability as
increasing their chances of successfully challenging agency
interpretations in court. Accordingly, the Report determines that
policymaking flexibility is better understood as a “vice that leads to
uncertainty and unnecessary, protracted litigation that unsettles the rule
of law.”146
In addition to these surmised compliance and litigation cost
increases, the Report asserts that Chevron fosters a certain intellectual
laziness in Congress and the courts alike.147 In a surprising example of
self-incrimination, the Committee admits that Chevron gives legislators
an incentive to draft carelessly worded statutes.148 The syllogism goes
something like this: the more carefully worded a statute, the clearer the
intent of the Congress that passed it.149 The clearer that intent, the fewer
the opportunities to argue that the language was actually motivated by a
different intent or was calculated to a different purpose when, inevitably,
a powerful interest group derides it.150 Accordingly, Chevron allows
ample opportunities for Members of Congress to pass the buck of
140. Id at 5.
141. Id.
142. Id.
143. See id. at 5–6.
144. See id. at 7–8.
145. See id.
146. Id. at 6.
147. Id.
148. Id. (stating “Congress has an incentive to write less careful statutes that poorly
express its intent” under Chevron).
149. See id.
150. See id.
political accountability to agencies, who will ultimately have to

determine the statute’s meaning and, as a result, be accountable for it.151
For their part, courts also have powerful incentives under Chevron to
shirk their responsibilities to review congressional and agency work
product.152 From the Committee’s perspective, the courts are reluctant to
invite open confrontations with Congress, and so will shy away from
striking down vague statutes for fear (presumably) of reprisal.153 Thus,
Chevron provides a convenient and effective escape hatch for timid
courts.154 The Committee does not explain just how or why judges
applying Chevron shirk their agency review responsibilities, other than
mentioning their possible desire to avoid confrontation.155 It may be that
they shift their scares resources, time, energy, manpower, etc., away
from Chevron issues which are ultimately the agencies’ responsibility,
and toward other issues over which they have the final say. It may be that
judges have internalized one of the Chevron doctrine’s central
underlying rationales, namely, that they as generalists, do not have the
requisite expertise competently to scrutinize the decision-making of
expert agencies where no clear policy choices have been made by
Congress.156 They are accordingly conditioned to give agency
interpretations of ambiguous statues a lighter touch than the Committee
thinks is otherwise warranted.157 Whatever its reasoning, the Committee
concluded that Chevron is bad for courts and Congress alike.158
Finally, the Committee reasoned that Chevron empowers agencies to
“play politics with their [policy] choices.”159 This criticism questions the
very motives of administrative decision-makers, implying that the
reasons they give when resolving statutory ambiguities are largely (or
perhaps entirely) pretextual. 160 Whereas an agency’s stated reasons for
selecting one policy position over another may be facially supported by
authorized and acceptable inputs such as evidence of Congress’s intent,
scientific consensus or accepted analytical methodologies, independently
verified factual findings, cost-benefit analysis, etc., the real reason is
advancement of an ideological agenda or the attainment of victory in a
151. See id.

152. See id.
153. See id.
154. See id.
155. See id.
156. See Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837, 865 (1984).
157. See H.R. REP. NO. 114-622, at 9 (2016).
158. See id.
159. See id.
160. Id. at 6.
political (as in tribal) conflict against an agency’s enemies.161 As the

People have not empowered administrative decision-makers to base their
policy choices on purely political considerations, those choices,
permitted but insufficiently policed by Chevron, are both illegitimate and
pernicious.162 The opportunities for strategic mischief are possibly even
greater under the Auer doctrine.163 Again, Auer instructs courts to defer
to agencies’ interpretations of their own ambiguous regulations.164
Whereas agencies’ manipulative capacities under Chevron are at least
limited to the statutory ambiguities they inherit from Congress, Auer
allows agencies to create ambiguous rules and then resolve those
ambiguities as they see fit.165
In a flourish, the Committee sums up its parade of horrible as

follows:
This is not the system of ‘ambition . . . made to counteract

ambition’ between the Branches envisioned by the Framers, a
system intended to preserve liberty. The Federalist No. 51
(James Madison). This is instead a system of evasion of
accountability, exploited by the unaccountable, and facilitated by
the evasion of responsibility by the likewise unaccountable, all
of which are threats to liberty.166
To meet these threats, SOPRA would revise APA § 706 to require

federal courts, not agencies, to decide de novo all questions of
constitutional, statutory, and regulatory law.167 In so doing, it would
overturn Chevron, Auer, and presumably any other precedent that would
161. Cf. CARL SCHMITT, THE CONCEPT OF THE POLITICAL 26 (George Schwab trans.,
2007) (arguing that “the specific political distinction to which political actions and
motives can be reduced is between friend and enemy”).
162. See id. at 26–30.
163. Auer v. Robbins, 519 U.S. 452 (1997).
164. Id. at 461.
165. See H.R. REP. NO. 114-622, at 6–9 (2016).
166. H.R. REP. NO. 114-622, at 6 (2016).
167. SOPRA would revise §706 to read, in relevant part, as follows:
(a) To the extent necessary to decision and when presented, the reviewing court
shall determine the meaning or applicability of the terms of an agency action
and decide de novo all relevant questions of law, including the interpretation of
constitutional and statutory provisions, and rules made by agencies.
Notwithstanding any other provision of law, this subsection shall apply in any
action for judicial review of agency action authorized under any provision of
law. No law may exempt any such civil action from the application of this
section except by specific reference to this section.
Separation of Powers Restoration Act of 2016, H.R. 4768, 114th Cong. (2016).
have courts defer to agency interpretation.168 Additionally, the

Committee expects de novo review would replace whatever review
standards currently prevail in all the “mini-APAs” sprinkled throughout
the United States Code.169 In any case, SOPRA would represent an
express congressional desire that courts not defer to agencies when
interpreting ambiguous statutes, language to the contrary in other
statutory schemes notwithstanding.170 SOPRA passed in the House by a
vote of 240-171 on July 12, 2016.171 As of the writing of this Article, it
awaits further action in the Senate.172 Senator Orin Hatch of Utah
introduced a similar measure in July 2017.173
III. A CRITIQUE OF THE CRITIQUES
While Essentialist and Pragmatist critiques of Chevron have some

persuasive force, they also exhibit some significant flaws. Essentialism
unjustifiably downplays the countermajoritarian difficulty by casting
lawmaking through interpretation as an inherently judicial function.174 It
also mistakenly discounts a critical role the courts already play vis-à-vis
agency statutory interpretation: checking agencies’ interpretive work
against the best evidence of Congress’s intent.175 Pragmatism, at least in
168. See H.R. REP. NO. 114-622, at 9 (2016).

169. Id. at 10.
170. Id. at 9.
171. H.R. 4768 – SEPARATION OF POWERS RESTORATION ACT OF 2016, CONGRESS.GOV
(July 12, 2016), https://www.congress.gov/bill/114th-congress/house-bill/4768.
172. Id.
173. Separation of Restoration Act of 2017, S. 1577, 115th Cong. (2017).
174. See Barry Friedman, The History of the Countermajoritarian Difficulty, Part One:
The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 333–43 (1998). This is not to
say that judicial lawmaking can never serve self-governance-regarding goals. Courts can
certainly create new legal obligations for the purpose of advancing what they perceive to
be the political majority’s preferences. See FALLON, supra note 12, at 618 (questioning
whether federal common lawmaking necessarily “disserves legislative purposes,” as
courts may create common law to further the legislature’s intentions). Several scholars
have described the Judiciary’s supplementation and clarification of federal statutes as a
partnership between Congress and the courts, in which the latter uses common-law
reasoning and tools to improve statutes’ functionality or to update them for prevailing
conditions. See, e.g., Daniel J. Meltzer, The Supreme Court’s Judicial Passivity, 2002
SUP. CT. REV. 343 (2002); Peter Strauss, The Common Law and Statutes, 70 U. COLO. L.
REV. 225 (1999). The question is not whether courts can use their common lawmaking or
interpretive powers to advance Congress’s policy choices, but whether Congress has any
discretion in choosing whether they do so.
175. See Chevron, U.S.A, Inc. v. Nat’l Res. Def. Council, 467 U.S. 837, 843–45
(1984) (holding that an agency’s interpretation must be reasonable and not contrary to
congressional intent); see also Nat’l Fed’n of Indep. Bus. V. Sebelius, 567 U.S. 519, 544
(“the best evidence of Congress’s intent is the statutory text”).
the form envisioned by SOPRA and similar proposals, may do more to

thwart than to implement Congress’s policy preference.176 Agencies
should sustain continuous dialogue with their legislative oversight
committees.177 They are susceptible to congressional inquiry and
influence in a way that courts will never be.178 Unless we suppose that
courts will have a better sense of what Congress intended in a statutory
scheme—and there are compelling reasons to reject this supposition—
eliminating interpretive deference is more likely to increase rather than
decrease the distance between statutory interpretation and congressional
policy choices.
A. Judicial Essentialism and the Countermajoritarian Difficulty
In essence, Essentialism posits that Article III gives courts the right
to make independent policy choices when interpreting ambiguous
statutes, even if those statutes address the most divisive issues our nation
faces.179 The corollary to this is that Congress, despite its constitutionally
vested role as federal lawmaker, has no choice but to accept the
Judiciary’s role as interpreter-in-chief.180
Admittedly, this line of arguments makes intuitive sense when we
are dealing with constitutional interpretation.181 By and large, the
Constitution is a countermajoritarian document.182 Many of its provisions
are calculated to contain political majorities’ tendencies toward excess
and abuse.183 Asking the officials most accountable to those majorities—
176. See Gutierrez-Brizuela, 834 F.3d at 1151 (Gorsuch, J., concurring) (stating
“[a]dmittedly, the legislative process can be an arduous one” when discussing Congress’s
recourse when the Judiciary misinterprets statutes).
177. Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61,
122–35 (2006) (describing the critical role of informal congressional oversight in
influencing administrative decision-making). See generally, Brian D. Feinstein, Avoiding
Oversight: Legislator Preferences and Congressional Monitoring of the Administrative
State, 8 J. L. ECON. & POL’Y 23 (2011) (describing various activities and forms of
congressional oversight on the administrative state).
178. See Beermann, supra note 177 (describing use of periodic reports, hearings and
compliance of various informal communications under threat of new legislation);
Feinstein, supra note 177 at 26 n.16 (describing various ways Congress exercises
oversight including hearings, and informal communication).
179. See Friedman, supra note 174 at 334–36.
180. Marbury, 5 U.S. (1 Cranch) at 177 (“It is emphatically the province and duty of
the judicial department to say what the law is.”).
181. See id.
182. Marshall, supra note 125, at 205. See Friedman, supra note 174, at 344–45.
183. JOSH CHAFETZ, CONGRESS’S CONSTITUTION: LEGISLATIVE AUTHORITY AND THE
SEPARATION OF POWERS 16 (2017) (“Constituting, distributing, and restraining political
power is the very heart of what constitutions do.”).
the politicians in the Executive and Legislative Branches—to police the

Constitution’s restrictions would be the governmental equivalent of a
bank hiring a master thief as its head of security. Thus, as the argument
goes, “judges necessarily have the responsibility of interpreting the
Constitution, for [no] other branch could possibly possess that authority
without calling into question the countermajoritarian force of the
Constitution” itself.184 The interpretative touchstone here is the will of
the People as memorialized in the Constitution, and the People made a
conscious decision to place strict limits on what political majorities, or
their representatives in government, may do. The Judiciary’s deliberate
insulation from political pressure makes it the only Branch that can make
sure the arrangement holds.185
But these positions glide past a logically antecedent question: “By
what right does the judiciary exercise the power to make political choices
in the course of statutory interpretation?”186 The task of interpreting a
statute is not, as a general matter, suffused with the type of majoritarian
anxieties that drive constitutional interpretation.187 If anything, it is
driven by an opposing concern; that Congress’s agents in the other
Branches, on whom it is entirely dependent for the fulfillment of its
policy directives, will fail to be sufficiently faithful to its intent.188 After
all, the polestar of statutory meaning is Congress’s policy choices, the
very thing constitutional review approaches with suspicion.189 Faithful
statutory interpretation tries to identify and give force to majoritarian
policy choices.190 Unlike constitutional analysis, it is not concerned with
184. Marshall, supra note 125, at 206.

185. Id. at 205–06 (referring to the Judiciary as responsible for interpreting the
constitution because it is insulated from political pressure and non-majoritarian).
186. Id. at 205.
187. Id. at 206 (“Unlike constitutional interpretation, the creative aspects of statutory
interpretation cannot be justified by the need for a check on the validity of legislative
enactments.”).
188. See H.R. REP. NO. 114-622, at 6 (2016) (“Agencies, meanwhile, rather than have
an incentive to interpret statutes as faithfully and rigorously as possible . . . have an
incentive to play fast and loose with their interpretations and play politics with their
choices.”).
189. United States v. Comstock, 560 U.S. 126, 135 (2010) (citing United States v.
Morrison, 529 U.S. 598, 607 (2000)) (maintaining that even if courts give Congress’s
statutes a presumption of constitutionality, those statutes are still scrutinized for
constitutional infirmities).
190. See, e.g., Erin R. Womack, Into the Third Era of Administrative Law: An
Empirical Study of the Supreme Court’s Retreat from Chevron Principles in United
States v. Mead, 107 DICK. L. REV. 289, 296 (2002) (stating that no Chevron deference is
necessary if Congress’s intent is clear, implying that the goal of interpretation is to
determine Congress’s intent).
scrutinizing Congress’s actions for hints of overreach.191 It therefore

seems quite strange that courts should have interpretive autonomy as of
right, rather than out of the contingencies and occasional necessities
engendered by the exercise of their jurisdiction.192 Marbury itself does
not say otherwise.193 Far from standing for the “deep” sense of “saying
what the law is” as Essentialists claim, the opinion involved the selection
of one provision of pre-existing law (Article III, Section 2, Clause 2)
over another provision of pre-existing law (§25 of the Judiciary Act of
1789).194 Chief Justice Marshall’s task was to identify and apply the law
that controlled the outcome of the case, not to create any new legal rules
through interpretation or other means.195 Nevertheless, this is what
Essentialists claim when they situate the power of exclusive statutory
interpretation in the case or controversy requirement.196
The same point can be reached from a different direction. If one
accepts that interpreting ambiguous statutes shades easily into
independent policymaking, why would the Judiciary have exclusive
authority to do it even in the cases falling within its jurisdiction? As
already noted, the American conception of separation of powers can be
divided into the distinct ideas of “separation of functions” and
“separation of agencies.”197 Under the former, the government performs
three fundamental functions: legislation, law execution, and judgment.198
Under the latter, the Constitution assigns to each of the government’s
“agencies” (i.e., its Branches) only one of those fundamental
functions.199 While the everyday realities of governance prevent absolute
separation of functions among distinct Branches, the expectation of
191. See Marshall, supra note 125, at 205–06 (stating an “important function of the
Constitution is to bind the majority to certain procedures and to preclude the majority
from certain activities”).
192. U.S. CONST. art. III § 2 (“The judicial power shall extend to all cases, in law and
equity, arising under the Constitution.”).
193. See Marbury, 5 U.S. (1 Cranch) at 137–143.
194. Id.
195. See id. at 177–80.
196. See, e.g., Gutierrez-Brizuela, 834 F.3d at 1151 (Gorsuch, J., concurring) (“At
Chevron step one, judges decide whether the statute is ‘ambiguous,’ and at step two they
decide whether the agency’s view is ‘reasonable.’ But where in all this does a court
interpret the law and say what it is? When does a court independently decide what the
statute means and whether it has or has not vested a legal right in a person? Where
Chevron applies that job seems to have gone extinct.”).
197. See VILE, supra note 69, at 16–18. The third element of Vile’s framework for
“pure” separation of powers is “separation of persons,” pursuant to which “the three
Branches of government shall be composed of quite separate and distinct groups of
people, with no overlapping membership.” Id.
198. Id. at 16.
199. Id. at 16–18.
separateness indicates the function over which, at a minimum, a Branch

is meant to exercise primary responsibility and control.200 This
separation, in turn, has decisional legitimacy and institutional design
stakes attached to it. In a democratic society, the legitimacy of the legally
binding policy decisions reached by its government will be measured by
how faithfully they reflect the “ultimate normative political premise” of
self-determination.201 Accordingly, it is the representative Branches of
government—those chosen by and most directly accountable to the
People—that may legitimately impose new legal obligations on the
People.202 “It is in part to preserve this democratic premise that our
system chose a structure that separated the judicial and representative
branches of government.”203 Moreover, as between Congress and the
President, the former is closer to the People, and therefore acts with
comparatively greater self-governance legitimacy.204 The Judiciary, for
200. Id. at 16–19. Marshall, supra note 125, at 201 (“One of the central premises of the
Constitution’s division of powers, and the American system of government, is that the
primary federal lawmaking authority belongs to Congress. If separation of powers means
anything, it means that the task of creating new laws falls upon the legislature.”).
201. Martin H. Redish, Federal Common Law, Political Legitimacy, and the
Interpretive Process: an “Institutionalist Perspective, 83 NW. U. L. REV. 761, 762
(1989). Cf. Bell, supra note 35, at 20 (“The conventional approach to statutory
interpretation—discerning legislative intent—is grounded on a conception of
majoritarianism in which the policies chosen by a majority of elected representatives
should govern society.”).
202. Compare H.R. REP. NO. 114-622, at 34 (2016) (“Policymaking is more properly
suited for the political Branches, which are ultimately accountable to the people who are
affected by such policies. As the Court in Chevron recognized, judges have no political
constituency by constitutional design and there is no mechanism by which the public or
political Branches could demonstrate disapproval of judicially determined policy.”). The
last part of the Dissent’s observation is bit overblown; the political Branches and the
people obviously have numerous ways of vocalizing their dissatisfaction with judicially
created policy. It is more likely the Dissent meant to suggest that it is difficult to formally
reject those policies.
203. Redish, supra note 201, at 764.
204. At least, this was the position of James Madison. As he explained in The
Federalist No. 49:
The members of the executive and Judiciary departments are few in number
and can be personally known to a small part only of the people. The latter, by
the mode of their appointment, as well as by the nature and permanency of it,
are too far removed from the people to share much in their prepossessions. The
former are generally the objects of jealousy, and their administration is always
liable to be discolored and rendered unpopular. The members of the legislative
department, on the other hand, are numerous. They are distributed and dwell
among the people at large. Their connections of blood, of friendship, and of
acquaintance embrace a great proportion of the most influential part of the
society. The nature of their public trust implies a personal influence among the
its part, is able to remain “above the fray” of politics when it is not asked
to resolve contentious policy debates.205 Giving the Judiciary, the
unelected Branch, unaccountable to the People in any direct way,
independent and inalienable power to create new rules to bind their
conduct would undermine, rather than advance, the idea of self-
governance.206
As one might expect, such arguments can be traced back at least to
the Founding Era. Alexander Hamilton, in The Federalist No. 78,
touched on this distinction between legislatures and courts. Although his
Article is rightly famous for anticipating the federal courts’ power of
judicial review, Hamilton also emphasized what distinguishes the
judicial and legislative functions:
It can be of no weight to say that the courts, on the pretense of a

repugnancy, may substitute their own pleasure to the
constitutional intentions of the legislature. This might as well
happen in the case of two contradictory statutes; or it might as
well happen in every adjudication upon any single statute. The
courts must declare the sense of the law; and if they should be
disposed to exercise WILL instead of JUDGMENT, the
consequence would equally be the substitution of their pleasure
to that of the legislative body. The observation, if it prove
anything, would prove that there ought to be no judges distinct
from that body.207
Of course, the Framers specifically considered and rejected a

governmental structure that would have combined the powers of “WILL”
and of “JUDGMENT” within the same Branch.208
people, and that they are more immediately the confidential guardians of the
rights and liberties of the people.
THE FEDERALIST NO. 49 at 258.
205. H.R. REP. NO. 114-622, at 34 (2016).
206. Id. at 33 (“[J]udges lack the political accountability of Executive Branch
agencies.”).
207. THE FEDERALIST NO. 78 (Alexander Hamilton). See, e.g., Corinna Barrett Lain,
Soft Supremacy, 58 WM. & MARY L. REV. 1609, n.286 (2017) (describing as “famous”
Hamilton’s defense of judicial review in The Federalist No. 78); John C. Yoo, The
Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1320 (1997) (discussing the
same); Bruce A. Ackerman, The Storrs Lecture: Discovering the Constitution, 93 YALE
L.J. 1013, 1030 (1984) (discussing the same).
208. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 221–22 (1995) (discussing the
Framers’ decision to “separate the legislative from the judicial power,” which was
“prompted by the crescendo of legislative interference with private judgments of the
courts”).
An Essentialist might respond that these countermajoritarian

concerns are largely overblown. Even if judicial lawmaking in statutory
interpretation to some degree frustrates representative self-governance, it
need not do so for long. Rather, Congress, who ultimately wields the
legislative power through the process of bicameralism and presentment,
can reject and replace the independent policy choices judges make.209
Because any non-congressional, non-constitutional lawmaking is
provisional upon ultimate disapproval or ratification by Congress, the
courts can never impose their will on the People in a way that seriously
threatens democratic first principles.210 Thus, it is safe to assume that
Congress’s inaction in the face of such judicial lawmaking is tantamount
to acquiescence to it, because Congress would move to eliminate such
judicially created rules if it really had a problem with them.211
For one thing, this response seems to miss a critical point. If courts
do not have the constitutional authority independently to interpret federal
statutes over Congress’s objection, such a deficiency cannot be remedied
by relying on Congress’s power to correct the mistake later. Indeed, the
mistake should never have been made in the first place. Even taken on
purely utilitarian grounds, however, there are significant problems with
this response. Relative to the Executive and Judicial Branches, Congress
has significant procedural disadvantages in exercising its vested
power.212 As commentators frequently observe, much of this is by
design.213 The Framers were sufficiently concerned about the legislative
function and its potential for abuse that they divided it between the two
chambers,214 carefully prescribed the procedures for its exercise,215
specified the substantive areas over which it could be exercised,216 and
gave the President a limited ability to thwart its use.217 Nevertheless, the
Executive and Judicial Branches have proved far nimbler in undertaking
209. Marshall, supra note 125, at 204 (quoting M. PERRY, THE CONSTITUTION, THE
COURTS, AND HUMAN RIGHTS 28 n.* (1982)).
210. Id.
211. See id.
212. See Gutierrez-Brizuela, 834 F.3d at 1151 (Gorsuch, J., concurring).
213. Id.
214. U.S. CONST. art. I, § 1, cl. 1 (1789).
215. U.S. CONST. art. I, § 7, cl. 2-3 (1789).
216. See, e.g., U.S. CONST. art. I, § 8 (1789).
217. U.S. CONST. art. I, § 7 (1789) see also Bradley & Morrison, supra note 8
(describing the Framers’ concern, as expressed by James Madison, that “the tendency of
republican governments is to an aggrandizement of the legislative at the expense of the
other departments”) (quoting THE FEDERALIST NO. 49 (James Madison)); Marshall, supra
note 125, at 205–06 (stating an “important function of the Constitution is to bind the
majority to certain procedures and to preclude the majority from certain activities”).
their functions than Congress could ever hope to be.218 As one

commentator recently put it, “[s]ince at least the end of the Second
World War, Congress has been at a substantial disadvantage in
advancing its institutional prerogatives vis-a-vis the executive.”219 The
Executive and Judicial Branches also have robust and often unavoidable
policymaking authority, through express and implied delegations of
lawmaking authority, federal common lawmaking, or exercises of
prosecutorial discretion.220 This places Congress at a disadvantage even
with respect to the function primarily entrusted to it by the Article I
Vesting Clause.221 To believe that Congress can effectively check the
other Branches’ lawmaking solely through Bicameralism and
Presentment, one would have to ignore the federal government’s basic
structure as well as the realities of modern governance.
More fundamentally, the courts do not need thorough-going control
over statutory interpretation to fulfill their Article III obligation to say
what the law is, or their review obligations under APA §706. They retain
a robust role in interpretation even when Congress chooses an agency as
its primary interpretive delegate.222 When reviewing agency
interpretations, courts must still ensure that the agency has stayed within
the statutory bounds of authority Congress set for it.223 Professor Henry
Monaghan explained this point even before Chevron was decided:
218. See Michael A. Fitts, The Paradox of Power in the Modern State: Why a Unitary,
Centralized Presidency May Not Exhibit Effective or Legitimate Leadership, 144 U. PA.
L. REV. 827, 851 (1996) (“The president is a unitary decision maker, he can take
unilateral action in imposing his own structures, his individual interests are largely
congruent with the institutional interests of the presidency, and he is dedicated to gaining
control over government. Congress is hobbled by collective action problems, vulnerable
to agenda manipulation by the president, and populated by individuals whose interests
diverge substantially from those of the institution. The result is an asymmetry in the
dynamic of institutional change, yielding an uneven but steady shift toward a more
presidential system.”).
219. See Michael Stern, Things to Do in Dirksen When You’re Dead, POINT OF ORDER:
A DISCUSSION OF CONGRESSIONAL LEGAL ISSUES, (Nov. 11, 2016, 11:05 AM),
http://www.pointoforder.com/2016/11/11/things-to-do-in-dirksen-when-youre-dead/; see
also Bradley & Morrison, supra note 8, at 440 (observing that “Congress faces
substantial collective action problems that are not present, at least to the same degree, in
the executive Branch”).
220. Gutierrez-Brizuela, 834 F.3d at 1149–58 (Gorsuch, J. concurring); Kriner, supra
note 6, at 769-73 (describing expansion of congressional delegations to the Executive
Branch since the early twentieth century).
221. Id. at 1151; Bradley & Morrison, supra note 8, at 440.
222. See Chevron, U.S.A, Inc. v. Nat’l Res. Def. Council, 467 U.S. 837, 843–45
(1984) (holding that an agency’s interpretation must be reasonable and not contrary to
Congressional intent);
223. Id.
To say that the “court–not the agency–must decide what the

statute means” seems to me potentially misleading, at least
without elaboration. To be sure, the court must interpret the
statute; it must decide what has been committed to the agency.
Frequently the court will (or should) understand the statutory
mandate as directing it, not the agency, to supply all or most of
the relevant meaning…The court’s task is to fix the boundaries
of delegated authority, an inquiry that includes defining the
range of permissible criteria. In such an empowering
arrangement, responsibility for meaning is shared between court
and agency; the judicial role is to specify what the statute cannot
mean, and some of what it must mean, but not all that it does
mean. In this context, the court is not abdicating its constitutional
duty to “say what the law is” by deferring to agency
interpretations of law: it is simply apply the law as “made” by
the authorized law-making entity. Indeed, it would be violating
legislative supremacy by failing to defer to the interpretation of
an agency to the extent that the agency had been delegated law-
making authority.224
From an institutional design perspective, the decision-making

structures and procedures of each Branch have been adapted to facilitate
the function to which the Constitution primarily assigned it. On the one
hand, restrictions on the Judiciary’s decision-making (rules of procedure
and evidence, doctrines of standing and jurisdiction, etc.), which apply
neither to Congress nor to the Executive, prevent it from being a
proactive crafter of generally applicable prospective rules. The
Judiciary’s access to information is quite limited, the responsibility for
gathering that information is placed on parties (on the courts themselves)
laboring under cumbersome procedures, and it must wait for someone
else to properly invoke its jurisdiction before it can act On the other
hand, a separate set of features—life tenure with irreducible salary for its
judges, a relatively small number of decision-makers working in close
collaboration, multiple layers of formal review before final resolutions
are reached—foster in-depth deliberation and make the courts effective
protectors of individual rights in the face of majoritarian excesses,
guarantors of procedural consistency and fairness, identifiers of subtle
but meaningful factual and logical distinctions, and producers of well-
reasoned conclusions.225 Unlike the courts, Congress need not wait for
224. Monaghan, supra note 78, at 27–28.

225. Cf. Daniel J. Meltzer, The Supreme Court’s Judicial Passivity, 2002 SUP. CT.
REV. 343, 396 (2002) (observing that it is difficult, if not impossible, to answer the
someone to voluntarily invoke its “jurisdiction” before performing its

legislative function, and is largely unrestricted in the information on
which it can rely when formulating policies. These differences in design
features belie the Essentialist claim that the Judiciary has an exclusive (if
limited) right to the task of lawmaking, whether through interpretation or
other means.226
B. Judicial Pragmatism and Congressional Oversight.
Downplaying the countermajoritarian concern puts Essentialists

somewhat at odds with Pragmatists. Again, Pragmatists argue that the
Chevron doctrine causes at least four basic problems: (1) it generates
regulatory uncertainty that increases litigation and compliance costs; (2)
it creates incentives for Congress to write poorly considered and vague
statutes to avoid political accountability; (3) it gives agencies license to
“play politics” when they interpret ambiguous statutes and regulations,
and; (4) it creates incentives for courts to shirk their responsibility of
pertinent legal question in gross, and the courts are functionally better adapted to engage
in the necessary fine tuning than is the legislature).
226. See Marshall, supra note 125, at 207 (“Judicial policymaking . . . is not one of the
functions which ought to be extolled as part of the courts’ ideal role in adjudicating cases
involving federal statutes.”) (citing Chevron, 467 U.S. 837 at 865). One might argue that
judicial lawmaking, when properly understood, is limited to the case in which the new
legal rule is created. Thus, courts make no pretense to crafting prospective rules of
general applicability when they make law in Article III cases or controversies. In NLRB v.
Wyman-Gordan, 394 U.S. 759 (1969), Justice Abe Fortas made this point in the related
context of administrative adjudication. There, the Court had to determine the legal effect
of an NLRB rule established through the adjudicative rather than the rulemaking process,
when the NLRB did not apply the rule in the case creating it. Writing for the plurality,
Justice Fortas made the following observations about the scope of adjudicative rules:
Adjudicated cases may and do, of course, serve as vehicles for the
formulation of agency policies, which are applied an announced therein. They
generally provide a guide to action that the agency may be expected to take in
future cases. Subject to the qualified role of stare decisis in the administrative
process, they may serve as precedents. But this is far from saying, as the
Solicitor General suggests, that commands, decisions, or policies announced in
adjudication are “rules” in the sense that they must, without more, be obeyed
by the affected public.
394 U.S. at 765. Assuming such a limitation to judicial lawmaking makes sense when the
court itself is the source of the rule’s purported binding legal effect. Statutory
interpretation is, however, different. In that context, the court imputes meaning to
Congress; the pedigree of the rule originates in the Legislative Branch, not the Judicial
Branch. If interpreting ambiguous statutes requires courts to make policy judgments
independent of Congress’s intent, and if courts impute whatever meaning they find to
Congress when resolving statutory ambiguities, then the courts are actually making
prospective rules of general applicability. The strictures on lawmaking we see for
common law rules would not apply.
giving definitive meaning to federal statutes.227 Pragmatists believe that

new legislation is the solution for these problems, in large part because
they do not believe that the courts are capable of jettisoning the Chevron
doctrine.228 They must also believe that Congress has the constitutional
authority to pass such legislation; otherwise, doing so would be good
political theater but futile legislative action.229 The Essentialists, of
course, believe that Congress has no such power; the task of statutory
interpretation is committed irreversibly to the courts by the Article III
Vesting Clause, and so Congress has no say in the matter. Put another
way, Essentialists see judicial review as a much needed check on
majoritarian decision-making, whereas Pragmatists (at least those who
support SOPRA) see majoritarian decision-making as a check on the
courts’ failure properly to conduct judicial review. Thus, the Essentialist
and Pragmatist positions can be held alternatively, but not
simultaneously.
Putting this tension to one side, there is a critical issue on which both
Essentialists and Pragmatists seem to agree: judicial oversight is much
more effective and desirable a check on administrative lawmaking than
congressional oversight. While formal definitions of oversight certainly
vary,230 it can, for present purposes, be divided into two broad categories:
legislative and non-legislative. Legislative oversight is conducted by
passing statutes; it is the normal legislative process used to affect
bureaucratic behavior. Through it, Congress can reshape, merge, abolish,
227. See supra Part II.B.

228. See supra notes 134-136 and accompanying text.
229. One could also perceive SOPRA’s sponsors as overlooking another glaring
contradiction. If they do not believe that the courts can be trusted to overturn Chevron,
how can they believe that the courts will respect their efforts to overturn Chevron?
Perhaps recognizing this problem, the House Judiciary Committee includes a brief
statement decrying “judicial activism,” and stating its intention to exercise “vigilant
oversight to detect whether judicial activism emerges and stand ready to undertake
additional legislation to respond to that mischief, if it arises.” H.R. REP. NO. 114-622, at
10 (2016). One wonders why it simply doesn’t exercise such oversight over the agencies
to which courts must currently defer under Chevron. There may also be another, more
basic reason the Committee believes that SOPRA will get the results it wants: it may
believe that SOPRA does not need to be “interpreted” at all. In other words, the
Committee may believe that SOPRA’s text completely and unavoidably expresses its full
intent. If that’s the case, SOPRA itself provides the courts with no opportunity to make
law through gap-filling or statutory clarification. One wonders whether such a belief is
simply naïve.
230. WALTER J. OLESZEK, CONG. RESEARCH SERV., R41079, CONGRESSIONAL
OVERSIGHT: AN OVERVIEW 4 (2010) (discussing several definitions of “oversight,” each
of which includes different types of congressional non-legislative activity).
or cut the budgets of agencies of whose performance it disapproves.231 It

can, with the force of law, refashion an agency’s procedures to increase
or reduce its regulatory effectiveness, or to alter its responsiveness to
public inquiries.232 Non-legislative oversight allows Members of
Congress to monitor and collect information on agency activities, and
enables them to signal how well or how poorly they believe the agency is
performing.233 This form of oversight ranges from a single
Representative or Senator intervening in administrative decisions on
behalf of one of her constituents, to on-the-record hearings with
subpoenas issued to administrative officials. Much of this oversight work
is done informally by Members of Congress and their staffs, and out of
public view.234 What’s more, Congress may be more motivated to use its
oversight tools with a robust Chevron regime than without one, because
of its collective unwillingness to cede unfettered policymaking discretion
to the President, with whom it competes for any political benefits that
might arise from controlling the bureaucracy.235
Despite Congress’s impressive array of non-legislative oversight
tools and motivations for using them, the House Judiciary Committee in
its SOPRA Report completely disregarded them, and hence the
possibility that they could effectively influence agency lawmaking
through interpretation. In lamenting the Supreme Court’s decision in
Auer to defer to the Secretary of Labor’s interpretation of his own FLSA
regulations,236 the Committee made clear its view that the DOL cannot be
231. A noteworthy example of an agency changing its decision-making in response to

cuts in its budget comes from the National Endowment for the Arts during the early
1990s. The NEA had funded the work of several controversial artists, including those
who were criticized by conservative groups and Members of Congress. After Congress
cut the agency’s budget by $3 million, it eliminated the program that had funded the
artists. This move was widely criticized as politically motivated, though the agency
insisted that the cuts were fiscally necessary. See Diana Jean Schmo, Endowment Ends
Program Helping Individual Artists, N.Y. TIMES (November 3, 1994).
232. See, e.g., The Government in the Sunshine Act, 5 U.S.C. § 552b (2012)
(providing, with specified exceptions, that “every portion of every meeting of an agency
shall be open to public observation”); The Freedom of Information Act, 5 U.S.C. § 552
(2012) (providing for full or partial release of information controlled by the United States
Government).
233. See WILLIAM J. KEEFE & MORRIS S. OGUL, THE AMERICAN LEGISLATIVE PROCESS:
CONGRESS AND THE STATES 428–43 (10th ed. 2001); OLESZEK, supra note 230, at 9–14.
See generally CHRISTOPHER H. FOREMAN, JR., SIGNALS FROM THE HILL: CONGRESSIONAL
OVERSIGHT AND THE CHALLENGE OF SOCIAL REGULATION (1988).
234. KEEFE & OGUL, supra note 233, at 447.
235. See John Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV.
673 (1997).
236. H.R. REP. NO. 114-622, at 7 (2016).
sufficiently checked without judicial pressure.237 From the Committee’s

perspective, judicial oversight would be both necessary and sufficient to
ensure agencies like the DOL remain within the proper scope of their
statutory authority. The corollary to this faith in judicial review appears
to be that Congress’s numerous forms of oversight are inadequate to hold
agencies accountable when they write poor regulations or decide on a
whim to change the obligations embodied in them.238 There is an
important consideration, however, that the Committee clearly
overlooked. Although courts have long said that they are bound to find
Congress’s intent in every statute they interpret,239 such intent is at best
opaque when they are faced with genuinely ambiguous provisions (i.e.,
the situation presented by cases like Chevron or Auer). Courts can
resolve this ambiguity only by engaging in lawmaking themselves, and
the Committee offers no argument for why we should expect judicial
lawmaking to better reflect what Congress would want than
administrative lawmaking. More importantly, Congress has little
interaction with or influence over the policy decisions made by courts.
Whereas Congress’s committees can be, and frequently are, in constant
dialogue with the agencies they oversee, those committees and the courts
share only silence. By shifting definitive statutory interpretation to
courts, SOPRA and similar proposals would place the formation of post-
legislative statutory meaning behind a firewall of de novo judicial
review. This, in turn, would drastically reduce Congress’s ability,
grounded primarily in the Article I Vesting Clause, to manage federal
policy creation. In practical terms, SOPRA would look to increase
Congress’s control over statutory meaning by decreasing its involvement
in its post-passage formulation. This is at least ironic, and most likely
misguided.
It may be true that a court decision has a more direct impact on an
agency’s lawmaking activities than would a hearing conducted by its
237. Id.
238. This certainly seemed to be Justice Scalia’s view. See Talk Am., Inc. v. Michigan
Bell Telephone Co., 564 U.S. 50 (2011) (“When Congress enacts an imprecise statute
that it commits to the implementation of an executive agency, it has no control over that
implementation (except, of course, through further, more precise, legislation.”). Here,
Justice Scalia completely discounts the possibility that political means of resolving
disputes—negotiation, public shaming, committee investigations, etc.—can effectively
substitute for (or perhaps even assist) a rule-driven oversight system that judges control.
239. See, e.g., Brown v. Duchesne, 60 U.S. 183, 194 (1856) (“[I]n interpreting a
statute, the court will not look merely to a particular clause in which general words may
be used, but will take in connection with it the whole statute (or statutes on the same
subject) and the objects and policy of the law, as indicated by its various provisions, and
give to it such a construction as will carry into execution the will of the Legislature, as
thus ascertained, according to its true intent and meaning.”).
oversight committee. Courts have the power to require specific agency

actions (such as reconsidering or abandoning an interpretative choice),
whereas its oversight committee is limited to gathering information and
exerting pressure without the authority to dictate the agency’s response.
Despite the fact that courts have the power to command, the frequency
with which they do so is unlikely to be high. Part of the reason judges
currently defer to agency policymaking is their relative lack of exposure
to the issues the agencies are tasked with managing on a day-to-day
basis. Whatever that lack of exposure may say about a judge’s
understanding of the regulatory issues coming under her review, it is
certainly the case that she is unlikely to have any significant involvement
in those issues going forward. This point is indirectly illustrated by Judge
Gorsuch’s exasperated reaction to the BIA’s positions on judicial
deference, discussed above. He clearly couldn’t believe that the Tenth
Circuit was being asked, yet again, whether it had to defer to the BIA’s
interpretations of the INA.240 In contrast to this isolated or (at best)
episodic involvement, Members of Congress can develop substantial
subject matter expertise by serving on oversight committees, particularly
if they serve for multiple terms in office.241 Their involvement in agency
policy formation can be relational, rather than transactional.242 They can
also initiate inquiries into administrative decision-making, whereas
courts must wait for the proper invocation of their Article III jurisdiction
before reviewing an agency’s policy choices. Moreover, Members of
Congress can consider evidence and arguments in whatever form they
arise, whereas courts are restricted by rules of evidence and procedure. In
short, the courts’ oversight capacity is definitive but quite narrow. Giving
it pride of place would likely reduce, not increase, Congress’s control
over the substance of the statutes it passes.
240. See supra note 65, and accompanying text.

241. See Jamelle C. Sharpe, Judging Congressional Oversight, 65 ADMIN. L. REV. 183,
229 (2013) (describing how congressional oversight procedures can increase Members of
Congress’s subject matter expertise while reducing information asymmetries vis-à-vis
agencies).
242. A variant of this aspiration is memorialized in the Legislative Reorganization Act
which, among other things, directs the House and Senate standing committees to “review
and study, on a continuing basis, the application, administration, and execution of those
laws, or parts of laws, the subject matter of which is within the jurisdiction of that
committee.” Legislative Reorganization Act of 1970, Pub. L. No. 91-510, § 118, 84 Stat.
1140, 1156 (codified as amended at 2 U.S.C. § 190d(a) (2018)). When originally passed
in 1946, it was hoped that the Act would “promote closer cooperation and better
relationships between the executive and legislative Branches.” George B. Galloway, The
Operation of the Legislative Reorganization Act of 1946, 45 AM. POL. SCI. REV. 41, 59
(1951).
Importantly, and especially given the legitimate countermajoritarian

concerns presented by agency (as opposed to judicial) lawmaking,
congressional oversight can be a critical tool for providing some measure
of political accountability.243 Indeed, the results reported in a 2015 study
of congressional oversight lend support to this idea. It found a positive
correlation between congressional use of on-the-record oversight tools
(e.g., hearings) and agency rulemaking activity as the policy differences
between the committee and the agency increased.244 One possible
explanation for this correlation is that Members of Congress believe their
oversight activities reduce policy differences with agencies, even though
those activities cannot fully eliminate that difference. The greater the
policy differences between them and the agencies they oversee, the more
they are led to engage in rigorous on-the-record oversight.245 Another
recent study found a 22% reduction in the recurrence of bureaucratic
issues that are the subject of congressional committee hearings as
compared to similar bureaucratic issues that were not the subject of such
hearings.246 Agencies respond to Congress’s political oversight, albeit
imperfectly. This responsiveness is important for at least two reasons.
First, and although judges may provide comparatively greater agency
responsiveness through the orders they issue, they cannot offer political
accountability because they are themselves unelected. Second, and as
importantly, Chevron and related doctrines give agencies lawmaking
flexibility which, in turn, gives congressional committees opportunities
for influencing the policies those agencies make. Much of the influence
currently enjoyed by the committees will be lost if that policymaking
shifts to the courts, who can overrule the policies agencies have adopted,
including those adopted with an eye toward the committee’s preferences.
Of course, Congress’s expected effectiveness in influencing agency
lawmaking (or agency decision-making of any kind) will depend on a
host of factors.247 Ceteris paribus, we would expect a committee with
oversight authority to be more effective than a single Senator or
Representative, even if that Senator or Representative is herself highly
243. Rezaee, supra note 9, at 1 (“Oversight is a potentially important channel for

mitigating Congress’s agency problem and therefore for bolstering the democratic
accountability of agency policy-making.”).
244. Id.
245. Id. at 21–22.
246. Brian D. Feinstein, Oversight, Despite the Odds: Assessing Congressional
Committee Hearings as a Means of Control Over the Federal Bureaucracy, HARVARD
UNIV. 18 (2009) https://pqdtopen.proquest.com/doc/304893324.html?FMT=AI.
247. There are certainly skeptics who have little faith in Congress’s capacity or
willingness to meaningfully oversee bureaucratic activity. See, e.g., KEEFE & OGUL,
supra note 233, at 447 (discussing criticisms of congressional oversight).
influential. We would expect an oversight committee with a unified view

on an issue to be more effective in influencing an agency’s policy
choices than a committee with diffuse views on that issue.248 We would
expect the effectiveness of congressional oversight to be affected by
whether it is conducted by a single committee or by a host of
uncoordinated committees with overlapping jurisdictions.249 We would
expect an oversight committee with substantial administrative resources
to police an agency’s conduct to do so more effectively than an agency
with sparse resources to dedicate to the task. Moreover, an agency’s
structure – single versus multiple leaders, congressional versus non-
congressional funding, etc. – almost certainly impacts Congress’s ability
to affect agency lawmaking through oversight.250 Finally, the President
and Congress certainly compete for political control of the bureaucracy
and, for procedural and structural reasons, the President may have
distinct advantages in that competition.251 This competition may divert
resources away from oversight activities, and provide agencies with
strategic options for thwarting congressional influence. While all of these
considerations are certainly probative of Congress’s ability to effectively
oversee agency lawmaking, they do not necessarily support the
Pragmatist conclusion that judicial oversight will outperform
congressional oversight in all (or even in most) circumstances. If
anything, they can serve as a guide to Members of Congress who want to
structure their oversight efforts more effectively.
248. See George A. Krause, Uncertainty and Legislative Capacity for Controlling the
Bureaucracy at 94–95, in UNCERTAINTY IN AMERICAN POLITICS 75–97 (Barry C. Burden
ed., 2003).
249. JOSHUA D. CLINTON, ET AL., Center for the Study of Democratic Insts., Influencing
the Bureaucracy: The Irony of Congressional Oversight 2 (Center for the Study of
Democratic Institutions, Working Paper No. 5-2012, 2012). “There are at least four
committees overseeing every agency—an authorizing and appropriations committee from
each chamber—and the number appears to be increasing. For some agencies and
programs, the number is much larger (e.g., the Department of Homeland Security).” Id at
4 (internal citations omitted).
250. See generally Sharpe, supra note 241 (discussing political science literature on
how an agency’s design affects its susceptibility to congressional influence).
251. “Agreeing upon and implementing a legislative response [to the President’s
attempts to influence administrative decision-making] becomes more costly as the
number of involved committees increases not only because of the relatively mundane (but
time-consuming) tasks such as setting up meetings, circulating legislation, holding
hearings, and finding time on the legislative calendar, but also because some committees
may exert something like veto authority over legislative activity in particular policy
areas.” Clinton, supra note 249, at 5–6 (internal citations omitted).
IV. CONCLUSION
In this Article, I have argued that critics of Chevron and its progeny
are mistaken in their belief that the doctrine violates the separation of
powers, or inexorably results in an aggrandizement of administrative
power that endangers the People’s liberty. The Essentialist and
Pragmatist critiques of the Chevron line of cases leave Congress with a
fairly circumscribed role in the creation of federal policy. While the
Article I Vesting Clause casts Congress as the “first-mover” that initiates
federal lawmaking through the legislative process, Essentialism posits an
atomized federal policymaking landscape in which the Judiciary has the
right – granted to it by the Article III Vesting Clause – to exercise its
independent judgment on the substantive content of federal statutory
meaning in the cases or controversies falling within its jurisdiction. This
independence even extends to ambiguous statutes, from which no
congressional intent could reasonably be gleaned. Although statutory
interpretation (particularly of ambiguous statutes) is a form of
lawmaking regardless of the Branch undertaking it, Essentialists insist
that the existence of an Article III case or controversy makes the task of
interpreting an ambiguous statute fundamentally “judicial.” This
characterization, in turn, points to the Judiciary’s exclusive control over
it. Congress, then, has no power to supplant the Judiciary with another
interpreter of its choosing; its managerial authority is thus limited to
overruling the substance of courts’ interpretations through passage of
new legislation, or to overseeing the Executive Branch’s post-passage
implementation of its statutes.
The Pragmatist critique is not necessarily committed to so restrictive
an understanding of Congress constitutional authority. It focuses instead
on whether agencies, on balance, are a better choice for interpreting
ambiguous statutes than are courts, and finds that they are not. To be
sure, these arguments can be used in service of the Essentialist critique.
An Essentialist could point to the supposed negative consequences of
having courts defer to agency interpretations as evidence that doing so
upsets the constitutional scheme. But the Pragmatist critique can also
stand on its own. Even assuming that Congress has unfettered discretion
to choose agencies over courts, Pragmatists would argue that doing so
creates more problems than it solves. As already explained in this
Article, however, there are numerous reasons to question both
Essentialist and Pragmatist arguments for choosing courts over agencies
as Congress’s primary statutory interpreters.
The subject of Congress’s power to its preferred interpreter, a power
assumed by Chevron and not derived from it, raises several additional
questions about Congress’s power to oversee federal lawmaking. First

and foremost, what is the source of Congress’s authority to choose
agencies over courts the chief interpreters of federal statutes? An obvious
starting point would be the Article I Vesting Clause, in which the People
delegate the legislative power to Congress. However, a “managerial
vesting” theory has yet to be developed for Congress. Assuming
Congress has constitutional authority to manage federal statutory
interpretation, to what lawmaking and interpretive activity does it
extend? Does it cover all forms of legislative and quasi-legislative
authority? Can Congress superintend federal lawmaking even in the
absence of an explicit or implicit delegation (e.g., the Judiciary’s creation
of federal common law)? What “bundle of rights” would be included
with this managerial authority? Scholars have argued that the President
and the Supreme Court, depending on the context, possess the power to
deputize, oversee, or overrule others using their vested powers. Is the
same true for Congress? What is the scope of Congress’s managerial
authority? ’Answers to these and related questions would provide much
needed depth to our understanding of Congress’s lawmaking and
oversight roles, and to how we view the separation of powers evident in
the Constitution.

Delegation and Its Discontents

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Delegation and Its Discontents

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DELEGATION AND ITS DISCONTENTS

I. INTRODUCTION .................................................................................. 185

Every now and then, and especially recently, Members of Congress

† Professor of Law, the University of Illinois College of Law. Thanks to Michael

certainly overwhelm the separation-of-powers safeguards established in

3. See discussion infra Section II.A.; Charles J. Cooper, Confronting the

their own complicity in expanding administrative lawmaking power, but

apparently places significant weight on whether they will reign in the

SOPRA and other recent attacks on Chevron are conceptually

19. U.S. CONST. art. III, § 1, cl. 1.

this Article advises against the adoption of SOPRA or similar proposals

II. ATTACKS ON AGENCY POLICYMAKING

The judicial and academic literature on Chevron and its progeny is

agencies now have breathtaking lawmaking power that they wield

Judicial Essentialists believe, broadly speaking, that the Constitution

it and placed the Tenth Circuit at loggerheads with the Board of

38. See id. at 1143–46.

prior judicial interpretations of the INA prospectively (i.e., in judicial

in Padilla-Caldera II.56 From the BIA’s perspective, In re Briones

56. Id. at 1144–45.

design.”67 He thus establishes two important features of the Essentialist

[T]he framers endowed the people’s representatives with the

Such separation pointed toward a single, ultimate purpose: to “guard

looking at you, BIA).75 Similar predations would result if the Judiciary

81. See Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J. concurring).

rules, and provide any appropriate remedies. For Judge Gorsuch,

Interpreting federal statutes—including ambiguous ones

95. Compare Gutierrez-Brizuela, 834 F.3d at 1151 (Gorsuch, J., concurring)

Vesting Clause, which vests the judicial power exclusively in

As with Judge Gorsuch’s Gutierrez-Brizuela concurrence, Justice

103. Id. (internal quotations and citations omitted).

is a lawmaking act assigned to Congress by the Article I Vesting

statutory language operative in the real world.125 This is especially true

As indicated by the House Judiciary Committee Report on SOPRA,

creates undesirable incentives for government actors.140 More

political accountability to agencies, who will ultimately have to

151. See id.

political (as in tribal) conflict against an agency’s enemies.161 As the

In a flourish, the Committee sums up its parade of horrible as

This is not the system of ‘ambition . . . made to counteract

To meet these threats, SOPRA would revise APA § 706 to require

have courts defer to agency interpretation.168 Additionally, the

III. A CRITIQUE OF THE CRITIQUES

While Essentialist and Pragmatist critiques of Chevron have some

168. See H.R. REP. NO. 114-622, at 9 (2016).

the form envisioned by SOPRA and similar proposals, may do more to

A. Judicial Essentialism and the Countermajoritarian Difficulty

the politicians in the Executive and Legislative Branches—to police the

184. Marshall, supra note 125, at 206.

scrutinizing Congress’s actions for hints of overreach.191 It therefore

separateness indicates the function over which, at a minimum, a Branch

It can be of no weight to say that the courts, on the pretense of a

Of course, the Framers specifically considered and rejected a

An Essentialist might respond that these countermajoritarian

their functions than Congress could ever hope to be.218 As one

To say that the “court–not the agency–must decide what the

From an institutional design perspective, the decision-making

224. Monaghan, supra note 78, at 27–28.

someone to voluntarily invoke its “jurisdiction” before performing its

B. Judicial Pragmatism and Congressional Oversight.

Downplaying the countermajoritarian concern puts Essentialists

giving definitive meaning to federal statutes.227 Pragmatists believe that

227. See supra Part II.B.

or cut the budgets of agencies of whose performance it disapproves.231 It