Judge Frank A. Shepherd, 3rd District Court of Appeal. (J. Albert Diaz)
A Florida appellate judge who just took senior status issued a scathing opinion Wednesday to “rail once again” against deference to administrative agencies.
Third District Court of Appeal Senior Judge Frank Shepherd pushed future members of the court to weigh the constitutional ramifications of “mindlessly” adhering to Chevron deference, a doctrine under which courts tend to uphold executive branch agencies’ interpretation of legislation. He made a similar plea last month in a housing discrimination case.
The opinion came in a case reversing a decision from the Reemployment Assistance Appeals Commission, which had denied monetary support to a worker who lost her job because of foreign trade competition.
Shepherd concurred in result with Third DCA Judges Ivan Fernandez and Barbara Lagoa in their ruling against the agency. But he took issue with the judges’ acknowledgement that “an agency’s interpretation of a statute … should be accorded great weight,” a doctrine Shepherd said raises questions about separation of powers.
Citing U.S. Supreme Court Justice Clarence Thomas and the late Justice Antonin Scalia, Shepherd also said the right to due process takes a hit when one party is reflexively supported.
“The fundamental concern of keeping the individual branches separate is that the fusion of the powers of any two branches into the same department would ultimately result in the destruction of liberty,” Shepherd wrote. “We should be reluctant to so readily abandon our judicial independence and alter the structure upon which our entire system of government is based.”
A front-runner for the open seat on the U.S. Supreme Court also denounced Chevron deference in an interview published Tuesday in the National Law Journal. Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit said the doctrine allows “executive bureaucracies to swallow huge amounts of core judicial and legislative power.”
Shepherd retired Jan. 3, and Florida Gov. Rick Scott is considering nominees to take his place on the bench.