… is from pages 42-43 of Columbia University law professor Philip Hamburger’s 2020 monograph, The Administrative Threat:
When agencies make law in the guise of interpreting statutes, they rely on the courts to defer to their interpretations. But this judicial deference is unconstitutional. One problem is the judicial abandonment of independent judgment. When judges defer to agency interpretations, they depart from their judicial office or duty, under Article III of the Constitution, to exercise their own independent judgment. Recognizing this duty, Chief Justice John Marshall wrote in Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” The judges therefore cannot defer to an agency’s interpretation without abandoning their duty – indeed, their very office – as judges.