Is Judicial Deference to Agency Courts Bad?

Posted: August 29, 2016 by Nazim in Governmental Agencies


Last week, the Honorable Neil Gorsuch opined (pdf warning) that it might be time to re-evaluate the deference article 3 courts give to agency courts. The latter have a lot of expertise in their subject matter, but care very little about process, evidentiary rules, and procedure, which where most of our constitutional rights are implemented. I would agree with the good judge and the Washington Post article that brought this to my attention, IF the judicial branch had the manpower and resources to take on this extra burden. As things stand, the deference that the judge criticizes not only gives considerable power to agency courts, it also lightens the dramatically underfunded federal and state courts’ load. So, I guess I disagree with him, but here’s a juicy bit on why the judge is right:

Precisely to avoid the possibility of allowing politicized decisionmakers to decide cases and controversies about the meaning of existing laws, the framers sought to ensure that judicial judgments “may not lawfully be revised, overturned or refused faith and credit by” the elected branches of government. . . . Yet this deliberate design, this separation of functions aimed to ensure a neutral decisionmaker for the people’s disputes, faces more than a little pressure from Brand X.

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