Click here to download a pdf of the paper.

Abstract

In this paper, we argue that both state and federal lawmakers should take proactive steps to restore the separation of powers and preempt potential chaos following the Loper decision by adopting a delegation-dependent deference regulatory statute. Current legislative practices often delegate excessive authority to executive agencies, resulting in a concentration of power that undermines constitutional checks and balances and leads to regulatory inefficiencies and economic deadweight losses. By instituting a balanced, delegation-dependent system—focused not on substantive ambiguities but instead on clear delegation of regulatory authority—lawmakers can require courts to strike down rules that lack clear legislative delegation, defer to agencies when delegation is explicit, and require legislative approval when delegation is ambiguous, ensuring more accountable and transparent rulemaking processes. This approach could not only bolster judicial review but also nurture economic outcomes by reducing regulatory uncertainty and fostering a more dynamic market environment. Finally, our paper analyzes states leading the way by rejecting judicial deference to agency legal interpretation and ensuring legislative oversight of and participation in executive rulemaking.