Recently, my friend and U.S. Congressman Trey Gowdy spoke about the Rule of Law, specifically with respect to the President’s recent Executive Order regarding Immigration. With gridlock in D.C. being the norm, expect to hear a lot more about Executive powers. For example, commentators are suggesting Roberts is looking at approving some aspects of Obamacare under Executive interpretation powers, therefore, leaving those aspects up for elimination under a new administration. For 50-75 years, it has been expected that Executive interpretations of regulatory matters delegated by Congress would change when a different party occupies the White House.

In legal circles, this is the manifestation of what is known as Chevron deference, which gives the Executive branch power / discretion to interpret any ambiguities in a statute and enact regulations implementing their preferred interpretations (in theory eliminating the ambiguity). In effect, by this doctrine, the Executive branch gets the power to do what the Judicial branch normally does (i.e., interpret the law). Then, when parties come before the Judicial branch for resolution of their disputes related to the Executive interpretation in a regulation or in a policy statement or a guideline, the Judicial branch is obligated under Chevron to accept the Executive interpretation, as long as it is reasonable. As noted in the Roberts link above, the Judicial branch could then be obligated to accept two different interpretations resolving the same statutory ambiguity.
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