Restoring Legislative Authority: A Balanced Approach to Agency Deference

Abstract

To restore the proper checks and balances between state government branches, we think deference should depend on legislative delegation. The agency bureaucrat's decision tree should first ask whether the legislature wants his agency to write a regulation, second whether that regulation aligns with the legislature's intent, and finally whether the agency's interpretation and process to create the rule were reasonable.

Keywords: Judicial Deference, Nondelegation, Administrative Law, Chevron Deference, Separation of Powers, Regulation, Legislation, Rulemaking, Judicial Review

JEL Classification: K1, K2, K23, K4, H1