President Trump Prioritizing Selecting Federal Judges Who May Challenge the Administrative State
White House Counsel Don McCahn recently announced that President Trump will prioritize selecting federal judges who may challenge the federal administrative bureaucracy sometimes referred to as the “Administrative State.” The spiraling growth of federal agencies such as the Environmental Protection Agency or the Federal Trade Commission may seem unstoppable and yet their growing power raises important legal questions.
Some view the question concerning federal agencies such as the EPA as an issue between conservative Republicans and liberal Democrats. But this should not be a partisan political debate.
In legal terms, a giant question has been whether courts or agencies should decide a certain category of legal issues whenever federal statutes do not have clear language. Inevitably, many federal laws have provisions that are not clear or that do not cover all possibilities. Based on the Chevron decision by the Supreme Court, federal courts are not to decide certain legal issues and instead should allow the agencies headed by the politically appointed to make legal interpretations that may otherwise be made by judges. As a result , this Chevron issue is essentially a question of who decided -of judicial decision-making by independent judges as opposed to agency decision by political appointees concerning the meaning of the law.
Supporters of agency legal decision-making may point to the expertise of, for example, the Environmental Protection Agency on environmental issues. Others contend, however, that issues of law belong entirely to the independent federal judiciary. The White House apparently favors having certain legal questions presently being decided by federal agencies instead to be decided by federal judges.
Emphasizing respect for the role of federal judges over federal agencies is not a partisan political issue. Instead, it reaches deeply into the fundamental principles of the U.S. Constitution.