Gorsuch and Chevron

Among the reasons some right-of-center legal eagles like the prospect of adding Judge Neil Gorsuch to the U.S. Supreme Court is his stance on legal precedents involving federal administrative agencies. Tara Helfman explains in a Commentary column.

Nowhere has Gorsuch more boldly proven his commitment to a constitutional policing of the separation of powers than in his decisions in the field of administrative law, the body of law governing the administrative agencies that regulate almost every aspect of American life, from the food we eat to the air we breathe. Federal agencies like the Food and Drug Administration, the Environmental Protection Agency, and the Securities Exchange Commission wield what many view as a fourth type of government power not enumerated in the Constitution. These agencies are creatures of Congress, created by federal statute and invested with the power to promulgate regulations that have the force of law, all under the administrative auspices of the executive branch. Further complicating matters, many administrative agencies are granted adjudicative power by Congress. The Social Security Administration, for example, adjudicates more disputes each year than all the Article III courts combined.

The power of administrative agencies has been ascendant ever since the Supreme Court’s decision in Chevron v. Natural Resources Defense Council (1984). In that case, the Supreme Court formulated what is now known as “Chevron deference,” a measure of deference by the judiciary to the interpretations of the statutes by administrative agencies themselves. The case established a two-part test. First, if Congress has spoken directly to the issue at hand, either in the statute itself or in the legislative history surrounding it, Congress’s position on the matter is dispositive. But if Congress has not directly addressed the issue, the court will defer to the agency’s interpretation so long as it is based on a permissible construction of the statute.

Needless to say, lawyers, judges, and scholars have spilled much ink over precisely how much judicial deference is due under Chevron, and under what circumstances. But matters were complicated even further in 2005 with the Supreme Court’s decision in a case known as Brand X. There, a 6–3 majority held that under certain circumstances agency interpretations may actually supersede the judicial precedents of the courts established by the Constitution.

To Judge Gorsuch, these rulings pose a threat to the separation of powers. …

… [T]o conservatives and libertarians, Gorsuch’s willingness to revisit the constitutionality of Chevron deference is long overdue. It reflects a profound commitment to the separation of powers and not a latent hostility toward the administrative state. What is more, Gorsuch would not be alone on the Supreme Court in approaching the doctrine with a measure of skepticism. In two recent cases, Justice Clarence Thomas signaled a willingness to revisit Chevron deference, and the doctrine has provoked a hot bench in oral arguments.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

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