Republicans loaded federal courts, now they want to give those life-term judges more power

As congressional investigations of President Trump intensify — in the wake of special counsel Robert Mueller’s report, as summarized by Attorney General William Barr — so does the Republican message that legislative oversight of the executive branch is somehow improper.

White House press secretary Sarah Sanders assailed House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) for allegedly having “opened up a disgraceful and abusive investigation into tired, false allegations already investigated by the special counsel.” This tirade is too bad. 

{mosads}The Constitution has long been construed as authorizing Congress to investigate information as part of its express authority to legislate. If Congress goes too far in that regard, voters can make lawmakers pay the price at the next election.

Yet, the showdown between Trump and House Democrats is not the only separation of powers battle heating up these days. Another one hovers in the U.S. Supreme Court — and it has to do with whether courts should wrest power from the executive branch.

Let’s break this one down, because it’s dense. 

Congress makes laws. Generally speaking, laws are rules that govern private conduct in the future. There’s no law banning stink-eye today, but a legislature could pass such a law. If it did (and lawfully so), the statute would apply to lots of people prospectively. What judges do is virtually the opposite: They resolve disputes between individual parties that happened in the past. Judicial decisions are discrete and largely retrospective.

The executive branch executes — or enforces — the law. If there were a law banning stink-eye, then a police officer would presumably arrest individual violators and a prosecutor would bring a criminal case against them in court.

But what if the stink-eye law is vague? Who would get to decide what “stink-eye” even means? This is where judges — and executive branch agencies — come in.

Imagine a hypothetical congressional statute requiring that drug companies include on their labels “all necessary and appropriate information to facilitate public health.” That language leaves lots of open questions. What is “necessary,” what is “appropriate,” what does “facilitate” mean in this context, and how is “public health” measured?

Congress doesn’t have the bandwidth or expertise to fill in these blanks, so it gives that task to an agency. In the text the statute, therefore, Congress might tell the Food and Drug Administration to pass regulations defining these terms.

In a famous decision called Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court in 1984 ruled that when agencies fill in legislative blanks at the behest of Congress, the resulting regulations cannot be overturned by courts unless the agency’s blank-filling was unreasonable. Agencies get the benefit of the doubt here.

Note that when agencies pass regulations, they do it in a remarkably democratic way. That’s because under a statute called the Administrative Procedure Act, regular lay people get to submit comments to agencies when they make all sorts of regulations. Agencies then have to account for those comments in the final product, in case the regulations are challenged in court. There is lots of scholarly debate over whether this process works as it should. Arguably, huge monied interests get a louder voice than everyday Americans, but the same can be said of the legislative process.

Enter a case argued last week in the Supreme Court called Kisor v. Wilkie. With Kisor, the court has an opportunity to overrule a cousin of Chevron — a later case that requires courts to give agencies the benefit of the doubt when they interpret ambiguous language in their own regulations, as well.

On the day Kisor was argued, Senate Republicans re-introduced legislation called the Separation of Powers Restoration Act of 2019, which aims a bullet directly at Chevron. In a press release, Sen. Chuck Grassley (R-Iowa) is quoted as stating that “for years, unelected bureaucrats have relied on judicial deference to expand their own authority beyond what Congress has ever intended.” 

That sounds pretty bad.

But if Chevron is successfully killed — whether by the Supreme Court or by Congress — the result will be that courts get the important job of filling in the blanks of ambiguous legislation.

Of course, courts resolve legal ambiguities all the time. The theory behind Chevron is that when it comes to complex policy issues, experts know a bit more than generalists. Agencies are stocked with experts. Federal judges are generalists. It’s like deciding whether to go to a family doctor for cancer treatment. Few patients would seriously dispute that a seasoned oncologist would likely provide safer and better care for a malignancy. 

This is not to say that Chevron is perfect, or that judges would botch the task of interpreting what Congress means to say in ambiguous legislation. The law in this area is complex, nuanced and steeped in theoretical concepts that would take many pages to explain.

But given Senate Majority Leader Mitch McConnell’s (R-Ky.) quest to load up the federal courts with Republican-leaning judges who sit for life, Kisor is an important case. Agency employees answer to a democratically-elected president. Short of impeachment, federal judges are only accountable to other, higher-ranking federal judges.

Therefore, Grassley’s constitutional alarm over a power grab by one branch of government at the expense of another is not entirely what it seems.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law, a CBS legal analyst and a contributor to the BBC. Her forthcoming book, “How to Read the Constitution — and Why,” will be published in June. Follow her on Twitter @kim_wehle.