Fresh Eyes: Wrongful Judicial Bias Harms Montanans
"As lawmakers look to strengthen the rights of Montanans, limiting the judiciary’s bias towards government could be a powerful way to ensure the courts err on the side of liberty by limiting the accumulated power of unelected regulators."
Enshrined in the US and Montana Constitutions, the separation of powers refers to the distinct division of government power among the legislative, judicial and executive branches. Ideally, this division limits any one branch from exercising the core functions of another, preventing the concentration of power in one branch. The framers envisioned that each branch would seek to limit the power of the other two branches in order to protect its own. As James Madison stated in Federalist 51, “ambition must be made to counteract ambition.” Yet today, the separation of powers is routinely undermined by judicial bias towards the government and against individual freedom.
Traditionally, the legislature is responsible for enacting public policy through laws; executive agencies implement and administer rules to achieve the public policy goals of enacted law; and the judiciary exercises its independent judgment when interpreting those laws and policymaking rules. This clear distinction between branches provides a bulwark against tyrannical government infringing on individual rights.
While the concept of the separation of powers seems straightforward, problems arise as the executive branch interprets and then implements the legislature’s oftentimes vague laws via rulemaking. Courts must then decide whether the rules adhere to the intent of the law – but far too often courts side with executive branch interpretation in what has become referred to as ‘judicial deference.’
Under judicial deference, the court will defer to the agency’s “reasonable” interpretation of its ambiguous governing laws, simply because they are the government. This bias towards the government allows the executive branch to effectively create law as they change their interpretation and implementation during the rulemaking process. With little legislative accountability for agency rulemaking and a judiciary systematically deferring to government, the rules impacting Montanans’ everyday lives are created and administered by unelected bureaucrats who only must answer to themselves. This undermines the separation of powers by limiting regulatory accountability from voters. Without accountability, unelected regulators can continue to expand agency bureaucracy, increasing regulatory barriers and red tape with few checks and balances.
Montana’s Supreme Court is terribly inconsistent regarding deference towards the executive branch’s interpretation of laws, but the court usually defers to the agency’s interpretation of its policymaking rules. However, the Court has said it will not defer to the agency if its interpretation is plainly inconsistent with the spirit of the agency’s rule. This effectively means Montana’s regulators are free to write rules knowing their rules will be upheld so long as the judiciary thinks it is “reasonable.” However, what is “reasonable” relies on the individual justices’ own preferences and theory of constitutional jurisprudence. This creates a dynamic ripe for biased decision making in the courts.
States can take steps to eliminate wrongful judicial bias and restore the separation of powers. Earlier this year Tennessee tackled the judicial deference problem. Under a new law, Tennessee judges must examine the laws governing the agency and the agency’s rules de novo – meaning without bias toward agency interpretation. Additionally, if the court still finds the regulation ambiguous, the judge must resolve the ambiguity against the government’s interests, instead favoring the rights of the individual. The Tennessee law effectively mitigates judicial deference by providing policymakers an incentive to write clearer rules or face accountability by the judiciary. Such laws could rebalance the separation of powers, ensuring that the legislature remains the authors of public policy, not unelected bureaucrats. The Tennessee law demonstrates it is possible to strengthen the separation of powers and combat the court’s bias toward the government.
For far too long the judiciary’s bias has led us down the road towards ever greater government power. As lawmakers look to strengthen the rights of Montanans, limiting the judiciary’s bias towards government could be a powerful way to ensure the courts err on the side of liberty by limiting the accumulated power of unelected regulators.