Getting Deference Right (Ronald A. Cass, Winter 2024, National Affairs)
Federal agencies generate rules at the rate of 3,000 to 5,000 per year, compared to the roughly 150 to 500 laws enacted by Congress. The compilation of rules in the Code of Federal Regulations now exceeds 180,000 pages. Agencies also adjudicate millions of matters annually, dwarfing the caseload of the federal courts.
These rules and decisions dictate where people can build their homes, whom they can hire to do jobs for them, how their savings can be invested, and thousands of other issues large and small that shape our lives. Some decisions concern minor technical matters necessary to implement statutory instructions. Others determine important matters affecting private conduct with only the vaguest direction from the people’s representatives in Congress.
Because judicial deference gives greater power to unelected administrators, the rules for when and how much to defer to administrative decisions are central to effectively allocating authority among government branches and officials — central, that is, to who’s really in charge of the powers government wields and the functions it performs.