Judicial Interpretation of Legislative Silence Gone Too Far: The Case for a Separation of Powers Amendment

Abstract

While the philosophies of originalism and textualism are concerned, respectively, with the Constitution’s original public meaning and a statute’s ordinary meaning, deriving that meaning where the Constitution or Congress passing a statute have remained silent on a particular matter is exceptionally difficult. This difficulty in interpreting constitutional and congressional silence, combined with the J.W. Hampton decision of 1928, the Administrative Procedures Act of 1946, and the doctrine of Chevron deference, have collectively functioned to significantly weaken the doctrine of separation of powers in American government, in particular by weakening the powers of the legislative branch. This paper argues in favor of a constitutional amendment James Madison proposed in the first Congress to spell out the terms by which each branch of government relates to the others. It proceeds to argue that placing regulatory authority back under the legislative umbrella in this way would not be at odds with the goal of promoting efficient policy-making, which facilitated the legislative branch’s delegation of power to regulatory authorities in the first place.