White House Counsel Don McCahn recently announced that President Trump will be prioritizing selecting federal judges who have the potential to challenge the Administrative State. The growth of federal agencies like the Environmental Protection Agency and the Federal Trade Commission may seem unstoppable and their growing power raises significant legal questions.
Many view the question concerning federal agencies such as the EPA as a problem between conservative Republicans and liberal Democrats, but it should not be a one-sided political debate.
A huge question that has been raised is whether courts or agencies should decide a particular category of legal issues whenever federal statues don’t have clear language. Unfortunately, many federal laws have provisions that aren’t clear or that don’t cover all possibilities. Based on the Chevron decision by the Supreme Court, federal courts cannot decide certain legal issues and instead should allow the agencies run by the politically appointed make legal interpretations that may otherwise be made by judges. As a result, this Chevron problem is essentially a question of who decided -of judicial decision-making by independent judges as opposed to agency decisions by political appointees concerning the meaning of the law.
People who support agency legal decision-making may point to the expertise of the Environmental Protection Agency on environmental issues. However, others think that issues of the law should belong entirely to the independent federal judiciary. The White House obviously favors having particular legal questions being decided by federal agencies instead of being decided by federal judges.
Highlighting respect for the role of federal judges over federal agencies is not a biased political issue. Instead, it reaches deeply into the fundamental principles of the U.S. Constitution.