Neil Gorsuch, President Trump’s nominee for the Supreme Court, may be the answer to the prayers of many Republicans in Congress who have embarked on a project of diluting agency authority on regulation.
The generally pro-business judge currently on the 10th Circuit, based in Denver, differs from the late conservative Justice Antonin Scalia, whose seat he would assume if confirmed, in one key respect: He has criticized a cornerstone of modern administrative law known as Chevron USA v. Natural Resources Defense Council.
That 1984 Supreme Court decision in an environmental case “establishes the relationship between our three branches of government,” as Obama administration Assistant Attorney General John Cruden told the audience of administrative law specialists in November 2015. “And, it incorporates federal agencies that can, and should, add their expertise when appropriate. Because agencies often fill voids created by legislative ambiguity, there is an inherent tension between their acts and that of the legislative body,” he added, noting “administrative agencies are designed to make exactly the type of expertise-driven policy decisions that a generalist court cannot.”
But Gorsuch, in the 2016 10th Circuit case Gutierrez-Brizuela v. Lynch, suggested revisiting that principle. “There’s an elephant in the room with us today,” he wrote in a concurring opinion to a case involving in an immigration complaint against the Justice Department. “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.”
Scalia had taken a different view when Chevron was decided, noting that administrative law “is not for sissies . . . In the vast majority of cases,” he wrote: “I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn’t think about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.”