The writings of Judge Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, make clear his skepticism about government regulation and executive power.
If confirmed as a member of the Supreme Court, Gorsuch could push to limit or overturn a 33-year-old legal doctrine, known as Chevron, which says the courts should defer to executive branch agencies’ interpretations of ambiguous laws passed by Congress.
Last year, Gorsuch explicitly questioned the wisdom of the Chevron doctrine, arguing that judges should decide the meaning of the law, not federal bureaucrats.
In a 22-page concurring opinion he issued in a case before the 10th Circuit Court of Appeals called Gutierrez-Brizuela v. Lynch, Gorsuch wrote:
The fact is Chevron … permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.
He added, “[m]aybe the time has come to face the behemoth.”
— Phillip Carter (@Carter_PE) February 1, 2017
Gorsuch’s stance on Chevron will please conservatives who argue the Obama administration relied on this precedent aggressively.
But conservative legal experts and thinkers, including the late Justice Antonin Scalia, had embraced the doctrine when the U.S. Supreme Court adopted it in a 1984 case, Chevron U.S.A., Inc. vs. Natural Resources Defense Council.
As a result of the Supreme Court’s ruling, an agency such as the Department of Health and Human Services or the Environmental Protection Agency is able to implement policy passed by Congress how it wants when there is doubt about what lawmakers meant to enact, as long as the agency’s reading is “reasonable.”
In the case, the Supreme Court ruled that President Ronald Reagan’s Environmental Protection Agency could interpret the Clean Air Act in a way that allowed the Chevron oil company to emit more pollutants.
Indeed, Chevron has enjoyed bipartisan support in the past from those who believe it limits the power of activist judges and gives more authority to experts in their fields working for administrative agencies.
Yet today’s debate about executive power has shifted, with both parties questioning the proper use of executive power.
“This is not a Republican or Democrat issue,” said John Malcolm, director of The Heritage Foundation’s Meese Center for Legal and Judicial Studies, in an interview with The Daily Signal. “There are people on the left who criticize conservative agencies run amok and the opposite is true. If you are not a fan of wide-ranging administrative discretion, then Gorsuch’s views are music to your ears.”
Rep. John Ratcliffe, R-Texas, feels exactly this way.
Ratcliffe is one of the authors of the legislation, which passed the House last month, that directs courts, not agencies, to interpret all questions of law, including both statutes and regulations. The House sent the legislation to the Senate for it to review.
“It’s obvious from reading Judge Gorsuch’s opinions that we have a shared belief in the importance of separation of powers, and he has an expressed objection to the explosion of the administrative bureaucracy,” Ratcliffe told The Daily Signal in an interview. “That is music to my ears.”
Ratcliffe says he feels this way despite the fact that weakening or overturning Chevron would take authority away from a Republican president.
“The president will change,” Ratcliffe said. “It would be short-sighted and foolhardy for us as conservatives to be a cheerleader of Chevron just because a Republican occupies Pennsylvania Avenue. We will rue the day if the shoe is on the other foot again and Democrats are in power. What the American people should want and all members of Congress should want is Congress reasserting its authority and a judicial branch playing the role of interpreting laws rather than faceless unelected bureaucrats doing that.”
Ratcliffe says he expects Gorsuch to take an independent view of the subject, even if that means the judiciary branch becomes an obstacle for Trump to enact his agenda. He even encourages Senate Democrats to embrace Gorsuch’s views on executive power as a way to hold the Trump administration accountable.
“If you are afraid of an overreaching President Trump acting by executive order, ending Chevron deference is exactly the tool you want to restore your Article I legislative power to be that check and balance that our Founders intended and served us all well to 1984,” Ratcliffe said.
Dan Goldberg, the legal director at Alliance for Justice, a progressive judicial advocacy group, is telling Senate Democrats not to bite.
In an interview with The Daily Signal, Goldberg said Democrats should not support Gorsuch because of his views on Chevron, even if overturning the doctrine might benefit progressives in the short term.
“This is not a question of who the president is right now,” Goldberg said. “It’s a question of who Neil Gorsuch is. What he wants to do is make it much more difficult for agencies to enforce laws that ensure food and water safety, protect worker rights, and safeguard consumers and investors. Not requiring courts to defer to agency expertise will make it harder for future federal agencies to address these matters.”
Jeffrey Pojanowski, an administrative law expert at Notre Dame Law School, said the Chevron doctrine is likely to survive for now.
The professor, in an interview with The Daily Signal, said Gorsuch’s appointment to the Supreme Court could make justices more likely to at least act to weaken Chevron. If that were to happen, the judges could perhaps modify the standard of deference to raise the bar on how persuasive the agency has to be in making the case for why its interpretation of a law or rule is appropriate.
“There is no coalition to overrule Chevron,” Pojanowski said. “I don’t see anything from their opinions that enough judges would want to outright junk it, although they may be interested in domesticating it or taming it. At the very least, Gorsuch would give more opportunity to dial it back where the justices find it to be inappropriate.”