The Washington PostDemocracy Dies in Darkness

Gorsuch is right about Chevron deference

WASHINGTON, DC – MARCH 01: Supreme Court nominee Judge Neil Gorsuch (Photo by Mark Wilson/Getty Images).

Perhaps the most distinctive aspect of Supreme Court nominee Neil Gorsuch’s jurisprudence is his opposition to “Chevron deference”: the doctrine (first imposed by a 1984 Supreme Court decision) that requires judges to defer to administrative agencies’ interpretations of federal law in most cases where the law may be “ambiguous” and the agency’s position seems “reasonable.” In what is probably his best-known opinion, Judge Gorsuch denounced Chevron deference as “a judge-made doctrine for the abdication of the judicial duty.” He’s absolutely right about that.

I. How Chevron Deference Violates the Text of the Constitution.

Article III of the Constitution gives the judiciary the power to decide “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” Nowhere does the Constitution indicate that federal judges are allowed to delegate that power to the president or to the bureaucrats that work for him in the executive branch. Indeed, a major part of the purpose of separation of powers is to ensure that the branch that enforces the law is separate from the one that has the final say over its interpretation. That is what enables the judiciary to serve as an effective check on the power of the other branches of government.

Moreover, it’s fairly clear that the Founding generation did not envision that the executive branch would have a vast bureaucracy of the sort that exists today. Still less did they empower that bureaucracy to be able to dictate the meaning of the laws they are supposed to enforce. Some scholars argue that in many situations, agencies are not so much interpreting law, but actually making it by issuing regulations that often have only a tenuous basis in congressional enactments. When that happens, Chevron deference allows the executive to usurp the power of Congress as well as that of the judiciary. Only the legislature is supposed to have the power to make law under our constitutional system. Under the text and original meaning of the Constitution, Gorsuch’s position is extremely compelling.

II. Living Constitutionalists Should Oppose Chevron Too.

Not everyone is a textualist or an originalist. But even if you are a living constitutionalist whose main focus is the practical impact of legal doctrine today, you still have good reason to reject Chevron. As Gorsuch points out, judicial deference to agencies allows the latter to “reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court].” When the meaning of federal law changes with the political winds and the partisan agendas of succeeding administrations, that undermines the rule of law and the stability that businesses, state and local governments, and ordinary citizens need to be able to organize their affairs. A new administration should not be able to make major changes in law simply by having its agency appointees reinterpret it. That state of affairs is even more undesirable in an age of severe polarization and widespread partisan hatred and bias. By contrast, Gorsuch emphasizes, nondeferential “judicial review of the law’s meaning would limit the ability of an agency to alter and amend existing law.”

Judges, of course, are not immune to ideological and partisan bias themselves. But they are much more removed from partisan conflict than executive branch officials are. Moreover, because judges serve for life and appointments turn over only very gradually, the judiciary will almost always be far more ideologically diverse than than the administration in power. That makes it hard for the judiciary to impose a strong partisan bias in favor of one side, even if judges wanted to.

III. If You Fear Trump, You Should Fear Chevron too.

If you believe – as I do – that Trump is a dangerous menace to liberal values, then you have an additional reason to want judges who won’t defer to executive agencies’ interpretations of the law. Under Trump, those agencies will mostly be headed by people who support his agenda. You have even more reason to reject Chevron if you think the problem is not limited to Trump, and that the GOP as a whole is untrustworthy. In a two party system like ours, both major parties will hold the White House some large fraction of the time. Even if Trump flames out, Republicans will be in power again soon enough.

Similar considerations apply if you – like many Republicans – fear and distrust the modern Democratic Party and believe its bureaucrats will bend the law to their own nefarious ends if given a chance. Eliminating Chevron can help constrain such abuses. Like constitutional federalism, judicial control over legal interpretation is a form of insurance that protects us against the dangers that arise when our partisan enemies are in power.

Some liberals support Chevron because they believe that agency bureaucrats are, as a general rule, more likely to promote progressive policies than judges. That is to some extent true. For obvious reasons, people who work for federal regulatory agencies tend to be fans of the type of regulation the agency does, and that often coheres with liberal policy priorities. But, especially in an era where much of the GOP has moved away from small-government conservatism towards Trumpian big-government nationalism. That is clearly true on such issues as immigration, the War on Drugs, and restricting international trade, where Republicans now often promote a more activist government than Democrats.

Gorsuch’s now-famous opinion criticizing Chevron itself exemplifies the sort of case where deference to administrative agencies could easily promote a Trumpian nationalist agenda. In that case, Gorsuch and two fellow Tenth Circuit judges overruled an agency decision denying undocumented immigrants applications for “lawful residency” status.

As a general rule, deference to agencies tends to promote a pro-regulatory agenda, whether of the right or of the left. But there are notable cases where it might instead promote deregulation. It is worth remembering that Chevron itself deferred to a Reagan-era agency EPA policy that liberals thought did not regulate industry stringently enough. The plaintiff challenging the agency was the Natural Resources Defense Council, a prominent liberal environmentalist group. Ironically, Neil Gorsuch’s mother, Anne Gorsuch Burford, was the EPA administrator at the time the lawsuit began. The fact that his mother’s agency ultimately won the case evidently has not prevented Gorsuch from wanting to overrule it.

If, as seems likely, Gorsuch is confirmed, it will be a long time, if ever, before he could get the Supreme Court to overrule Chevron completely. Of the current justices, only Clarence Thomas seems willing to go so far. But a Justice Gorsuch would surely give the anti-Chevron cause new momentum, and might succeed in imposing new limits on deference, even if it is not eliminated completely.

Ultimately, Chevron deference is less a tool of a specific ideological agenda than a weapon for whatever administration happens to be in power. Reversing it will not eliminate all agency discretion or destroy the administrative state. Gorsuch notes, correctly, that in a post-Chevron world, “Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes.” Judges would still often rule the agency’s way, and many exercises of agency discretion would be difficult to contest in court at all. Still, reversing Chevron would help restore the proper role of judges in interpreting the law, and also curb agency intrusion on congressional authority. It would also serve to limit the dangerous overconcentration of power in the hands of the executive.

Chevron deference is far from the only issue at stake in the fight over Gorsuch’s nomination. I have some reservations about his positions on other questions myself. But Gorsuch’s critique of Chevron should at the very least count in his favor, especially for those who fear and distrust Trump or believe that the “imperial presidency” should be more tightly constrained generally.