Gorsuch Refuses to Dance the Chevron Two-Step

Mo

When Trump promised last summer to nominate originalists to the Supreme Court, I didn’t believe him. I don’t think I was alone in my skepticism. Trump is not well-known for truth-telling or promise-keeping. Tuesday, though, he proved me wrong by nominating Neil Gorsuch, currently a judge on the U.S. Court of Appeals for the 10th Circuit. Of course, it’s possible Gorsuch will turn out to be another Justice Souter, so I don’t want to go overboard. But based on his jurisprudence, it seems unlikely.

What gives me the most hope is Gorsuch’s take on Chevron deference—a Supreme Court doctrine that is, frankly, an affront to the separation of powers. Chevron is a famous Supreme Court case about executive agencies like the EPA. Here’s how it works: Agencies are empowered by statutes passed by Congress and signed by the President. So, for example, the EPA is empowered by the Clean Air Act, among other statutes. These statutes are supposed to dictate what powers the agency has to regulate. The agency empowered under a statute then makes regulations that flesh out the details of the statute.  

In practice, these regulations invade way too many aspects of life. The Obama administration alone passed 21,000 regulations during his tenure—21,000!  Major corporations have entire departments devoted to compliance with the regulations governing their industries. Even though they have not been passed by Congress or signed by the President, these regulations have the force of law. And the punishment for violations can be severe.

As you’d expect, disputes often arise over whether agencies have exceeded the powers granted to them under the governing statute. Chevron deference is a doctrine the Supreme Court developed to deal with these disputes. Under Chevron, the court first asks whether the statute is ambiguous on the specific issue. If the statute is ambiguous, the court will defer to the agency’s interpretation as long as it’s “reasonable.” Here’s the thing: these statutes are almost always ambiguous, and courts almost always defer to the agency’s interpretation. What this means is executive agencies wield extraordinary power, shielded from accountability by the electorate and inviting the most pernicious crony capitalism. What’s worse, Congress is happy to delegate its legislative responsibilities to the executive to avoid responsibility, and the President is happy to assume that power.

​What’s so great about Gorsuch is he doesn’t seem to like this arrangement, at all. In 2014, he wrote a concurring opinion in an immigration case, Gutierrez-Brizuela v. Lynch, in which he laid out, in expansive, compelling fashion, why Chevron must go. It’s an amazing piece of writing, and exceedingly rare to find in court opinions. His opening paragraph is a wonder:

There’s an elephant in the room with us today. 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.

​Gorsuch goes on to lay out, in detail, why Chevron violates separation of powers, specifically, in his view, because the judiciary almost completely abdicates its responsibility to interpret statutes and delegates that power to the agencies. So, both Congress and the courts delegate most of their authority—legislation in the case of Congress and statutory interpretation in the case of the judiciary—to the executive branch. As an added bonus, Gorsuch even cites The Federalist Papers! Multiple times! If you have the time, I urge you to read his concurrence in full.

Democrats are all worked up about this concurrence because they love the Chevron doctrine and they fear what Gorsuch will do to it. Agencies are a favorite of Democrats. They are a shining beacon of progressivism—rule by experts. Of course, Democrats always think they’ll be back in the White House soon enough, and to them, the ratchet of power always goes only one way, to the Left. What they’re missing, though, is that getting rid of Chevron would remove power from an executive branch that is currently headed by Trump, the next coming of Hitler to them. They should welcome this development and, as with everything else they’re confronting now with Trump in office, embrace Constitutional principles like separation of powers. They won’t.