In Judge Neil Gorsuch, President Trump has tapped somebody for the U.S. Supreme Court who has been a staunch critic of the deference that courts have given to the federal regulatory state.
As relations between Congress and the executive have soured over time, presidents have increasingly turned to federal agencies to impose aspects of their agenda that they have trouble passing legislatively.
One of the legal precedents that helped accelerate this process stems from a 1984 Supreme Court decision involving regulations passed by the Environmental Protection Agency through the Clean Air Act. Under the Chevron deference standard that it established, instead of interpreting a law as written and then determining whether the agency acted within the law, courts defer to a federal agency’s interpretation of the law. As long as the court determines, first, that the wording of a federal statute is “ambiguous,” and second, that an agency had a “reasonable” interpretation of its wording, courts have given vast regulatory discretion to agencies.
In a concurring opinion issued last August from his perch at the U.S. Court of Appeals for the 10th Circuit, Gorsuch strongly criticized the Chevron deference standard.
“There’s an elephant in the room with us today,” Gorsuch wrote. “We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit 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. Maybe the time has come to face the behemoth.”
He went on to describe the care the founders put in creating a constitutional separation of powers, which he argued was undermined by the Chevron standard.
“Even under the most relaxed or functionalist view of our separated powers some concern has to arise, too, when so much power is concentrated in the hands of a single branch of government,” he wrote, going on to cite the Federalist Papers. “After all, Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive). Add to this the fact that today many administrative agencies ‘wield[] vast power’ and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix.”
He continued, “Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is ‘the very definition of tyranny.’ But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state — and spawned along the way more than a few due process and equal protection problems…”
If Gorsuch is confirmed to the Supreme Court, he will be in a position to rule for decades on cases involving regulatory authority, and if his past writing on the subject is any indication, he’s likely to be a strong voice for a lot less deference to federal agencies.
