Separation of powers: How the Supreme Court will weigh in

Nov 14, 2023, 6:00 AM

The U.S Supreme Court building....

The U.S Supreme Court is seen on Friday, Nov. 3, 2023, in Washington. (AP Photo/Mariam Zuhaib)

(AP Photo/Mariam Zuhaib)

SALT LAKE CITY — The Supreme Court will be considering a variety of cases that have the potential to reign in federal bureaucracy. It could affect many different departments and agencies within the executive branch.

Boyd Matheson from KSL NewsRadio’s Inside Sources spoke with William Duncan about how government agencies don’t align with the constitutional principle of separation of powers. 


Duncan is a law and religious freedom fellow for the Sutherland Institute. He said a big part of this is the Chevron deference, which defines how agencies “interpret a statute when a dispute arises.”

In the past, Duncan said government agencies would just enforce laws. But over time, especially since the 1950s, agencies have taken on an additional role in creating rules for how laws Congress enacts will be enforced. According to Duncan, this is because Congress increasingly gives agencies further authority under laws.

“The question in this case is what if Congress passes a law and it’s not clear on a topic? Can the agencies just say, ‘Well, we’ll just fill some information in?'” Duncan said.

If agencies can do that, they are no longer just enforcing the law, which is their role under the Constitution, but also making and interpreting the law, which is the responsibility of other branches of government.

The Chevron deference and separation of powers

Giving agencies the ability to enforce, make and interpret laws leads to a lack of checks and balances. One case the Supreme Court will weigh in on is about an agency Congress gave the power to supervise the enforcement of certain fishing laws.

Duncan said the agency is requiring fishing crews going into the ocean to pay a federal inspector to go along. This is asking a lot, Duncan said, and people want Congress to change that.

However, that can’t happen in this case, because Congress is not in charge of making that change. They would instead have to go to those running the agency who aren’t electable and are hard to get a hold of.

“There’s no way for that normal, appropriate feedback loop to occur, to get rules changed when they … create problems that maybe weren’t intended,” Duncan said.

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Separation of powers: How the Supreme Court will weigh in