Judicial Activism and Extralegal Legislation

The principle of government through law was the foundation of governance expressed in the Constitution. The source of all government power, the Constitution grants legislative power to Congress, judicial power to the courts, and executive power to the president, thereby binding citizens only via the law and the courts. Today, rather than imposing duties on the public through law, government exercises power through extralegal legislation such as rulemaking, interpretation, and guidance. Administrative legislation and adjudication functions as a parallel system of governance outside the lawful channels of legislative and judicial power—above the law (Hamburger, 2015).

“Judicial activism” is often used as a pejorative in political rhetoric to describe judges as activists who decide cases on the basis of their own policy preferences rather than as faithful and impartial interpreters of the law (Roosevelt, 2021). In other words, it is legislating from the bench. Activism imposes a fiat administrative law ruling over a legitimate decision via correct political process. This displacement of judicial, legislative, and presidential authority has had serious consequences for the separation of powers and raises the serious issue of capture of governmental power by faction (Sunstein, 1984). Separation of powers is an important institutional tool, and “To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded” (Burger, 1983). Improper activism finds its roots in the “belief that law is only policy and that the judge should concentrate on building the good society according to the judge’s own vision” (Cox, 1987). Proponents argue that judicial activism can improve both the distributive fairness (“equity”) and the efficiency of legislation relative to systems in which courts defer to legislative policies (Rogers, 2007). Advocates further posit that judicial activism in administrative law is best understood as a response to parochial private interests who have attempted to use governmental power to redistribute wealth or power in their favor (Sunstein, 1984).

Courts have deferred to an agency’s reasonable interpretation of an ambiguous statute through the framework of the Chevron doctrine (Baldwin, 2018). Chevron deference is the idea that courts will look to an agency’s own construction of an operating statute, unless that construction is outside the range of reasonableness because the statutory meaning is clear. The Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. decision granted the executive branch considerable leeway in determining the scope of its own power (McConnell, 2018). Chevron pivoted toward dynamic statutory interpretation as a necessary outgrowth of the modern administrative state. It established a test to determine when the supposed wisdom of expert political actors who created an agency’s technical rules should be heeded (Baldwin, 2018).

The Administrative Procedure Act (APA) outlines the scope of judicial review of agency decisions, including interpretive rulemaking (5 U.S.C. § 706). Pursuant to this review, a court may set aside agency action found to exceed statutory jurisdiction or authority (5. U.S.C. § 706(2)(C)).  If Congress has expressly or impliedly left a gap for the agency to fill, it has not exceeded its delegated authority by filling in the gaps. However, because Chevron calls for deference to reasonable agency interpretations of ambiguous provisions, it is inconsistent with the APA. The existence of Chevron deference encourages government insiders to seek out statutory ambiguity that will allow an agency to engage in creative rulemaking to accomplish whatever goals an agency or organization may have. As long as Chevron stands, there will remain incentives for unelected bureaucrats to set policy for the entire nation. Once such example was the Environmental Protection Agency (EPA) Clean Power Plan (CCP) (Goodlatte, 2016). Upon signature of the final rule killing the CCP, President Obama’s signature plan, President Trump’s EPA Director Andrew Wheeler stated the old rule would have resulted in double-digit electricity price increases in 40 states (Irfan, 2019).

Another major case involving Chevron deference and (according to critics) judicial activism was King v. Burwell. In that case, Chief Justice Roberts saved a key provision of the Affordable Care Act (ACA) (Roberts, 2014) by allowing tax credits to be distributed through state and federal insurance exchanges. Immediate effects of the ACA included dramatically rising cost for plan coverage, enrollment challenges, unanticipated tax penalties, and a dramatic reduction in employee hours in order to fall below the “full-time” employee definition. As discussed, judicial activism and the administrative state have combined forces to inflict pernicious long-term effects on the nation.



Administrative Procedure Act, Pub.L. 79–404, 60 Stat. 237 (1946).

Baldwin, Kathryn M. Endangered Deference: Separation of Powers and Judicial Review of Agency Interpretation. St.John’s Law Review, vol. 92, no. 1 (2018). pp. 91-119.

Burger, Warren. INS v. Chadha, 462 U.S. 919, 957-58 (1983).

Cox, Archibald. The Role of the Supreme Court: Judicial Activism or Self Restraint. 47 Maryland Law Review 118, 121-22 (1987).

Goodlatte, Robert. Hearing Before the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the Committee on the Judiciary House of Representatives (2016). https://www.govinfo.gov/content/pkg/CHRG-114hhrg99454/html/CHRG-114hhrg99454.htm

Hamburger, Philip. Is Administrative Law Unlawful? The University of Chicago Press (2015).

Irfan, Umair. Trump’s EPA Just Replaced Obama’s Signature Climate Policy with a Much Weaker Rule. Vox Media (2019). https://www.vox.com/2019/6/19/18684054/climate-change-clean-power-plan-repeal-affordable-emissions

McConnell, Michael W. Kavanaugh and the “Chevron Doctrine.” Stanford Law School (2018). https://law.stanford.edu/2018/08/02/kavanaugh-and-the-chevron-doctrine/

Roberts, John. King et. al v. Burwell, Secretary of Health and Human Services, et. al. (2014). https://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf.

Rogers, James R. and Vanberg, Georg. Resurrecting Lochner: A Defense of Unprincipled Judicial Activism. Journal of Law, Economics, & Organization 23, no. 2 (2007): 442-468.

Roosevelt, Kermit. Judicial Activism. Encyclopedia Brittanica (2021). https://www.britannica.com/topic/judicial-activism

Stevens, John Paul. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984).

Sunstein, Cass. A. In Defense of the Hard Look: Judicial Activism and Administrative Law. 7 Harvard

Journal of Law and Public Policy 51 (1984).

Rick Newbold Written by:

Mr. Newbold has been working in the national security field since 2003 and has been an IAPP-certified privacy professional since 2007. He holds a JD from Regent University, an MBA from Thunderbird School of Global Management, and an LL.M. in National Security Law from Georgetown University Law Center. Mr. Newbold is currently pursuing his Ph.D. in Public Policy with a focus on National Security Studies. He has contributed to several national-level documents and participates in a number of public policy-related working groups.

Comments are closed.