Marbury Ascendant: The Rehnquist Court and the Power to "Say What the Law Is"

I. Introduction Marbury v. Madison announced that it is "emphatically" the power of the judiciary to "say what the law is."1 Notwithstanding Chief Justice Marshall's confident exposition of judicial power, Marbury's holding has done nothing to quiet doubts concerning the judiciary's authority to declare that the actions of more accountable, and more expert, institutions are contrary to governing law. Indeed, in academic circles, the debate about the efficacy and legitimacy of judicial review enjoys a renewed vigor.2 As interesting as this debate has been, and continues to be, the true measure of the state of judicial power hes in the practice and pronouncements of the Supreme Court. By that light judicial review could not be stronger. In the past six terms or so, the Rehnquist Court has "emphatically" asserted its power under Marbury to "say what the law is." Two phenomena are particularly noteworthy in this regard, and they are the focus of this Article. The first is the marked decline in the deference the Court is willing to afford legislative enactments pursuant to Section 5 of the Fourteenth Amendment. Section 5 grants Congress the power to enact all "appropriate" measures to "enforce" rights under the Fourteenth Amendment, including the right to equal treatment under the law.3 Although the Court has traditionally deferred to any "rational" exercise of the Section 5 power, the Rehnquist Court has invalidated several exercises of the enforcement power as improper incursions into the Court's authority to declare the substance of constitutional rights. One of the means by which the Court has invalidated Section 5 enactments is by faulting Congress for failing to compile and present a "legislative record" demonstrating the "congruence and proportionality" of remedial or prophylactic legislation under Section 5.4 The second separation of powers phenomenon involves the Rehnquist Court's new approach to judicial review of executive agency interpretations of law. Executive agencies, whose "reasonable" or "permissible" interpretations of federal statutes have been entitled to strong judicial deference since Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,5 will henceforth have to earn deference under a bifurcated defence principle. In the past two Terms, Chevron's broad domain has been significantly narrowed and its bright line deference rule diminished. In Christensen v. Harris County6 and United States v. Mead Corp.,7 the Court announced that Chevron's strong deference applies only in the limited circumstance in which the Court is convinced, by reference to a combination of the agency's statutory grant of authority and the formality of the proceedings that produced the specific rule in question, that Congress has given the power to the agency to issue interpretations with the "force of law."8 In all other cases, agencies must fight for judicial "respect" under Skidmore v. Swift & Co.,9 which scales deference of an apparently weaker sort, based on factors such as the thoroughness of the agency's reasoning, the logic of the interpretation it has rendered, the consistency of the interpretation with prior pronouncements, and any other factors that might convince the court of the "persuasiveness" of the agency's interpretation.10 Chevron's long reign as a uniform deference rule has now come to an end. The Court has officially authorized lower courts to exercise their independent judgment with respect to the vast majority of agency interpretations. This Article links the Section 5 cases and the Mead doctrine as parallel manifestations of the ascendancy of Marbury's core principle - that it is "emphatically" a judicial function to "say what the law is." The Rehnquist Court has newly asserted the primacy of its power to declare the meaning of the Constitution under Section 5, which grants Congress broad power to enforce constitutional rights. Similarly, the Court has taken back a substantial measure of the power to interpret governing law that it ceded in Chevron, which instructed courts to uphold reasonable agency interpretations of the statutes they are charged with enforcing. …