““On behalf of the deference under the Administrative Procedure Act, it is said that Congress is not constitutionally barred from authorizing deference—as if Congress can detract from the office of the judges. The office of the judges, however, was an element of the Constitution’s grant of judicial power, and it required the judges to exercise independent judgment in accord with the law of the land. Put another way, when the Constitution authorized judicial power, it took for granted that judges, by their nature, had such a duty.19 This judicial duty was recognized very early, because it was the foundation of what nowadays is called “judicial review.” When writing about the judicial power of North Carolina in 1786, James Iredell explained: “The duty of the power I conceive, in all cases, is to decide according to the laws of the state,” and as “the constitution is a law of the state,” a statute “inconsistent with the constitution is void.” Or as put by John Marshall in Marbury v. Madison, where “both the law and the constitution apply to a particular case” the court “must determine which of these conflicting rules governs the case,” this being “of the very essence of judicial duty.”20 Judicial review, in other words, is entailed by judicial duty—a duty that accompanies judicial power and that requires judges to exercise their own independent judgment in following the law. And another result of this duty is that a mere statute cannot justify the judges in abandoning their independent judgment or in following extralegal rules or interpretations. As if this were not enough, the U.S. Constitution adds that no person shall be “deprived of life, liberty, or property, without due process of law.” If this means anything, it surely requires a judge not to defer to one of the parties, let alone to defer systematically to the government. Nonetheless, on the basis of a mere statute, the judges generally defer. The next step is to examine the varieties””
